New York Times v. Sullivan: A Retrospective Examination

DePaul Law Review DePaul Law Review

Volume 33 Issue 4 Summer 1984 Article 2

New York Times v. Sullivan: A Retrospective Examination New York Times v. Sullivan: A Retrospective Examination

Bruce L. Ottley

John Bruce Lewis

Younghee Jin Ottley

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Recommended Citation Recommended Citation Bruce L. Ottley, John B. Lewis & Younghee J. Ottley, New York Times v. Sullivan: A Retrospective Examination, 33 DePaul L. Rev. 741 (1984) Available at: https://via.library.depaul.edu/law-review/vol33/iss4/2

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NEW YORK TIMES v. SULLIVAN:A RETROSPECTIVE EXAMINATION

Bruce L. Ottley *John Bruce Lewis**

Younghee Jin Ottley***

It has been twenty years since the United States Supreme Court handeddown its decision in New York Times Co. v. Sullivan.' The Court's opinionin that case has had an unprecedented and continuing impact both on thelaw of defamation and on first amendment rights.2 Most of the literaturedealing with the New York Times case has focused on the constitutionalaspects of the decision or its implications for the development of future legal

* Professor, DePaul University College of Law, B.A., University of Missouri; M.A., J.D.,University of Iowa; LL.M., Columbia University.

** Attorney, Squire, Sanders & Dempsey, Cleveland, Ohio. B.A., J.D., University ofMissouri; LL.M., Columbia University.

*** Attorney, Continental Bank, Chicago, Illinois. B.A., Seoul National University (Korea);J.D., DePaul University.

1. 376 U.S. 254 (1964). In New York Times, the Supreme Court held that the first amend-ment "prohibits a public official from recovering damages for a defamatory falsehood relatingto his official conduct unless he proves that the statement was made with 'actual malice'-thatis, with knowledge that it was false or reckless disregard of whether it was false or not."Id. at 279-80.

2. In Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the Supreme Court extendedthe actual malice standard to defamatory statements concerning "public figures." Id. at 155.In Time, Inc. v. Hill, 385 U.S. 374 (1967), the Court said that persons suing the media forinvasion of privacy must also meet the actual malice standard of New York Times. Id. at387-88. Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), marked the furthest expansionof the first amendment in defamation cases. In Rosenbloom, the Court held that plaintiffsmust prove actual malice in defamation cases involving "matters of general public concern"regardless of the fame or anonymity of the participants. Id. at 43-44. In Gertz v. Robert Welch,Inc., 418 U.S. 323 (1974), the Court reaffirmed its holdings in New York Times and Buttsbut said that Rosenbloom had gone too far. Id. at 342-43. The Court viewed Rosenbloomas an unacceptable encroachment on the legitimate state interest in the protection of reputa-tion. Id. at 347-48. The Court based the application of the actual malice test on a distinctionbetween public officials/public figures and private individuals. Id. at 351-52. The principal defama-tion cases since Gertz have been concerned with defining who is a public official or publicfigure. See Wolston v. Reader's Digest, 443 U.S. 157 (1979) (a man who had once been citedfor contempt for refusing to appear before a grand jury investigating Soviet espionage wasnot a public figure when he sued a book which listed him as a Soviet agent); Hutchinsonv. Proxmire, 443 U.S. 111 (1979) (a scientist who received federal funds for research purposeswas not a public figure for purposes of a libel suit against a United States Senator who ridiculedthe research as a wasteful expenditure of public funds); Time, Inc. v. Firestone, 424 U.S. 153(1976) (a wealthy Florida socialite involved in a divorce suit was not a public figure). TheCourt has held, however, that the plaintiff's attorney has the right to inquire about a reporter'sstate of mind in preparing a news story in order to establish actual malice. See Herbert v.Lando, 441 U.S. 153, 160 (1979).

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principles.' It is important to remember, however, that the case had its genesisin the tumult and controversy surrounding the civil rights movement of theearly 1960's. Thus, the decision cannot be analyzed at the dispassionate levelof first amendment theory alone but must be viewed as an extraordinarilysignificant product of the civil rights movement.

It is the position of the authors that the compelling facts surrounding thecase, as much, as pre-existing constitutional principles, led to the New YorkTimes decision. Thus, an understanding of New York Times requires anexamination of the case in its historical and procedural context.' That con-

3. Few Supreme Court decisions have been the subject of as many law review articlesas New York Times. For a general discussion of the constitutional and tort ramifications, see

Berney, Libel and the First Amendment, 51 VA. L. REV. 1 (1965); Brennan, The SupremeCourt and the Meiklejohn Interpretation of the First Amendment, 79 HARV. L. REV. 1 (1965);

Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amend-ment," 1964 Sup. CT. REV. 191; Lewis, New York Times v. Sullivan Reconsidered: Time toReturn to "The Central Meaning of the First Amendment," 8 COLUM. J. ART & L. 1 (1983);

Meiklejohn, Public Speech and the First Amendment, 55 GEO. L.J. 234 (1966); Nimmer, TheRight to Speak from Times to Time, 56 CALIF. L. REV. 935 (1968); Pedrick, Freedom of thePress, 49 CORNELL L. REV. 581 (1964); Pierce, The Anatomy of An Historic Decision: NewYork Times Co. v. Sullivan, 43 N.C.L. REV. 315 (1965).

4. Shortly after New York Times was decided, Professor Harry Kalven commented:The Times case has to be read against the sociological reality which produced it.First the publication in Alabama was tenuous in the extreme; the advertisementwas addressed to the normal audience of the Times; it appears that less than fourhundred copies of the 650,000 circulation of the Times were circulated in Alabamaand only thirty-five copies in the county in question. Second, other suits from thesame advertisement were pending, threatening several million dollars more in damages.Third, there is, at least in Northern eyes, something disingenuous about the response

of the Southern jury to the defamation involved; it involves the South in a showingof moral shock at vigorous conduct countering the Negro protest movement. Inbrief, although there was perhaps a technical libel involved, the impression is thatthe technicality was pounced on and exploited in Southern irritation over Northerninterference in the civil-rights controversy.

H. KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT 54-55 (1965). In his article entitled

The New York Times Case: A Note on "The Central Meaning of the First Amendment,"1964 Sup. CT. REV. 191, Professor Kalven was also mindful of the connection between theNegro protest movement and the New York Times decision. He declared:

[Elven a cursory examination of the case reveals that the decision was responsiveto the pressures of the day created by the Negro protest movement and thus raisesthe question so frequently mooted whether the Supreme Court has adhered to neutralprinciples in reaching its conclusion. . . . IT]he case is a major instance of theimportant consequences of the civil rights issue and the apparatus of protest thataccompanies it. The Negro movement is making significant constitutional law notonly in the area of the Fourteenth Amendment's Equal Protection Clause but inunexpected sectors of First Amendment theory. Whatever the irritations and crisesof 'the long hot summer,' the protest has maintained the dignity of political action,of an elaborate petition for redress of grievances. And no one has been more sen-sitive to this soiciological reality t han the Supreme Court itself.

Id. at 192-93. A similar view was echoed recently in an article by newspaper columnist andlecturer Anthony Lewis:

What was at stake on the facts of the Sullivan case was more than the fate ofone newspaper. It was the ability, or the willingness, of the American press to

1984] NEW YORK TIMES IN RETROSPECT 743

text linked the civil rights movement, the news media, and white Alabamaofficials in a struggle much larger than a single lawsuit. This article willexamine the civil rights origins of the case, the participants, their motives,and the related litigation. It will then turn to a detailed analysis of the NewYork Times case itself as it progressed through the courts and culminatedin the Supreme court decision.

I. THE ORIGINS OF A CONSTITUTIONAL CASE

A. Introduction

In March 1960, the Reverend Martin Luther King, Jr. was one of theleaders of the rapidly growing civil rights movement.' Dr. King had firstcome to national prominence four years earlier when, as president of theMontgomery Improvement Association, he led the campaign to desegregatethe Montgomery, Alabama bus lines. 6 As the president of the Southern Chris-tian Leadership Conference,7 he quickly rose to the forefront of the non-violent struggle for black civil rights in the South.

Because of his civil rights activities, Dr. King became the target of sporadicviolence and harassment. His home was the subject both of bomb and gun-shot attacks.' In 1956 Dr. King was convicted of violating the Alabama

go on covering the racial conflict in the South as it had been doing. Those werevery different times in Alabama and Mississippi and large parts of other statesin the Deep South: Blacks could not vote, much less attend school or eat a restaurantmeal or ride a bus on a nonracial basis. To challenge the racial system was dangerous;physical violence and threats were common. The national press, print and broad-cast, played an extremely important part in bringing all this to the attention ofthe rest of the country, in arousing the federal government to corrective actionand hence in changing the ways of the South. Of course those who wished to preservewhat was then called "the Southern way of life" did not like the press when itintruded into that life. Justice Black, who was from Alabama, observed in his con-curring opinion in the Sullivan case that white Southern feelings were especiallyhostile "to so-called outside agitators"-a term, Justice Black drily added, that"can be made to fit papers like the Times, when it is published in New York."

Lewis, supra note 3, at 3-4 (footnotes omitted). In Hugo Black and the Judicial Revolution,author Gerald Dunn also recognized the linkage between the civil rights movement and NewYork Times. G. DUNN, HUGO BLACK AND THE JUDICIAL PROCESS 384 (1977). When the SupremeCourt decided the New York Times case, it was aware of the related cases which arose frommedia coverage of the black protest movement in Montgomery, Alabama. See Petition forWrit of Certiorari to the Supreme Court of Alabama at 19, 6 Record, New York Times Co.v. Sullivan, 376 U.S. 254 (1964).

5. The most comprehensive biography of Dr. Martin Luther King, Jr. is S. OATES, LETTHE TRUMPET SOUND (1982). For a summary of Dr. King's career and of his confrontationswith southern law enforcement officials, see C. KING, THE WORDS OF MARTIN LUTHER KING,

JR. 7-13, 99-110 (1983).6. For an account of the Montgomery bus boycott and Dr. King's role in it, see M. KING,

JR., STRIDE TOWARD FREEDOM: THE MONTGOMERY STORY (1958); S. OATES, supra note 5, at

68-109.7. See S. OATES, supra note 5, at 147.8. See Minister Who Led Boycott in Montgomery Tells of Night Shotgun Attack, N.Y.

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criminal boycott statute because of his efforts in desegregating theMontgomery bus lines.' That same year he was also arrested for speeding;two years later he was arrested for loitering.'"

In February 1960, Dr. King was arrested on a charge of perjury in con-nection with the filing of his Alabama state income tax return." UnderAlabama law, this was a felony carrying a maximum penalty of ten yearsimprisonment.' 2 The "Committee to Defend Martin Luther King and theStruggle for Freedom in the South" was formed and, on March 29, 1960,it published an appeal for funds in a full-page advertisement in the NewYork Times (Times) entitled "Heed Their Rising Voices"."

The first paragraph of that advertisement described the actions and goalsof "Southern Negro students" demonstrating "in positive affirmation of theright to live in human dignity as guaranteed by the U.S. Constitution andthe Bill of Rights."" It went on to charge that these students were "beingmet by an unprecedented wave of terror."" The second paragraph claimedthat when 400 students tried to integrate lunch-counters in Orangeburg, SouthCarolina, they were forcibly ejected, tear-gassed, arrested en masse, andherded into an open barbed-wire stockade.

The third paragraph in the advertisement declared:

In Montgomery, Alabama after students sang "My Country 'Tis of Thee"on the State Capitol steps, their leaders were expelled from school, andtruckloads of police armed with shot-guns and tear-gas ringed the AlabamaState College Campus. When the entire student body protested to stateauthorities by refusing to re-register, their dining hall was padlocked inan attempt to starve them into submission. 6

The fourth paragraph spoke of student activity in "Tallahassee, Atlanta,Nasille, Savannah, Greensboro, Memphis, Richmond, Charlotte and a host

Times, Dec. 24, 1956, reprinted in 4 Record at 1501, New York Times. The January 30, 1956bombing of King's home is discussed in S. OATES, supra note 5, at 86.

9. See Court Holds Key to Bus Boycott, N.Y. Times, Oct. 14, 1956, reprinted in 4 Recordat 1618, New York Times, Answers of Defendant, New York Times Co., to Interrogatories,5 Record at 1930, 1934, New York Times.

10. The arrest of King for speeding is discussed in S. OATES, supra note 5, at 83-84. Seealso Answers of Defendant, New York Times Co,. to Interrogatories, 5 Record at 1930, 1934,New York Times (King was convicted and fined ten dollars).

11. See S. OATES, supra note 5, at 150-53. In May 1960, after a week's trial in Montgomery,Alabama, King was found not guilty of tax evasion by an all white jury. Id. at 153. For addi-tional discussion, see Testimony of John R. Matthew, Transcript of Proceedings on Merits,2 Record at 680, New York Times; Brief for the Petitioner at 9, 6 Record, New York Times;Motion of the Washington Post Company for Leave to File a Brief As Amicus Curiae AndBrief Of The Washington Post Company As Amicus Curiae In Support Of Petitioner at 4,6 Record, New York Times.

12. See Answers of Defendant, New York Times Co., to Interrogatories, 5 Record at 1930,1937, New York Times.

13. N.Y. Times, Mar. 29, 1960, at 25, reprinted in New York Times, 376 U.S. at 292-93.14. Id.15. Id.16. Id.

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NEW YORK TIMES IN RETROSPECT

of other cities in the South" referring to the students as "protagonists ofdemocracy."' 7 The fifth paragraph praised Dr. King as a symbol andinspiration to the civil rights movement and stated that the "Southernviolators of the Constitution"" were determined to destroy him.

The sixth paragraph stated:

Again and again the Southern violators have answered Dr. King's peacefulprotests with intimidation and violence. They have bombed his home almostkilling his wife and child. They have assaulted his person. They havearrested him seven times-for "speeding," "loitering," and similar"offenses." And now they have charged him with "perjury"-a felonyunder which they could imprison him for ten years.9

The remaining four paragraphs called upon "men and women of good will"to add their "moral support" and "material help . . . [to] those who are

taking the risks, facing jail and even death in a glorious re-affirmation of ourConstitution and its Bill of Rights." 2 The names of the sixty-four personswho comprised the "Committee to Defend Martin Luther King and the

Struggle for Freedom in the South" appeared directly below the text of theappeal. 2' The list included the names of A. Philip Randolph, EleanorRoosevelt, Ertha Kitt, Norman Thomas, Marion Brando, and HarryBelafonte.22 Below these names was the statement: "We, in the South, whoare struggling daily for dignity and freedom warmly endorse this appeal." ' 3

Below this statement was a list of twenty names, primarily ministers wholived and worked in the South.2" Among the names were four Alabamaresidents: Ralph Abernathy, Fred Shuttlesworth, S. S. Seay, Sr., and J. E.Lowery.25

Exactly two weeks after the publication of the advertisement, another eventoccured which also resulted in litigation between southern officials and thenews media. On April 12, 1960, the Times published a front page articlewritten by Harrison Salisbury entitled "Fear and Hatred Grip Birmingham." 2 6

In the article, Salisbury reported that as a result of the climate of racialfear in Birmingham, blacks and whites were afraid to talk freely, telephoneswere tapped, mail was opened (and some not delivered), and watchmen stood

17. Id.18. Id.19. Id.20. Id.21. Id.22. Id.23. Id.24. Id.25. Id.26. N.Y. Times, Apr. 12, 1960, at 1, col. 1, reprinted in New York Times v. Conner, 365

F.2d 567, 577 (5th Cir. 1966). For an account of the article concerning Eugene Conner, see

B. MUSE, TEN YEARS OF PRELUDE 261-63 (1964). The case law reflects some apparent confu-sion regarding the spelling of the name "Conner." In some cases it is spelled "Conner" whilein others it is spelled "Connor." In order to avoid confusion, this article will consistentlyuse the former spelling.

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guard at black churches and Jewish temples.27 Salisbury quoted blacks whocalled Birmingham "the Johannesburg of America." 28 The only personspecifically named in the article was the Birmingham Police Commissioner,Eugene "Bull" Conner, to whom a number of unfavorable quotes wereattributed.29

Both the March 29th advertisement and the April 12th article resulted ineditorial protests by the southern press.3" On April 8, 1960, the three citycommissioners of Montgomery individually wrote to the Times and the fourAlabama ministers and demanded a retraction of the statements containedin the March 29th advertisement. 3' On April 15 counsel for the Times assuredthem that the assertions were being checked and asked for further explana-

27. N.Y. Times, Apr. 12, 1960, at 1, col. 1, reprinted in New York Times Co. v. Conner,365 F.2d 567, 577 (5th Cir. 1966).

28. Id.29. The following statements were made about Eugene Conner in Salisbury's article:

By Birmingham custom, persons charged with vagrancy are not admitted to bail.They are held incommunicado for three days. In actual practice, such a prisoneris sometimes permitted to make one telephone call. But not always. A person arrestedon a vagrancy warrant simply disappears for three days. His friends and familymay not know what has happened to him.

This is a favorite technique of Birmingham's Police Commissioner, Eugene Conner.Mr. Conner is a former sports broadcaster known as "Bull" because of the timbreof his voice. He served as Birmingham Police commissioner for sixteen years inthe late Nineteen Thirties and Nineteen Forties. His administration was a stormy one.

He went into eclipse for several years but made a comeback in 1958 runningon a platform of race hate.

"Bull is the law in Birmingham, like it or not," a businessman said.Mr. Conner is the author of many widely quoted aphorisms. He once said:"Damn the law - down here we make our own law." On another occasion

he declared:"White and Negro are not to segregate together."

N.Y. Times, Apr. 12, 1960, at 1, col. 1, reprinted in New York Times Co. v. Conner, 365F.2d 567, 579 (5th Cir. 1966).

30. Among the critical editorials were: The Times and Salisbury, Alabama Journal, May7, 1960, reprinted in 5 Record at 2151, New York Times, Birmingham Statements Publishedin the Times, Montgomery Advertiser, May 4, 1960, reprinted in 5 Record at 2023, New YorkTimes; (Reply to N.Y. Times) Not a City of Race Terror, Alabama Journal, Apr. 22, 1960,reprinted in 5 Record at 2145, New York Times; Unworthy Newspaper Policy, Alabama Journal,Apr. 18, 1960, reprinted in 5 Record at 2139, New York Times; The Abolitionist Hellmouths,Montgomery Advertiser, Apr. 17, 1960, reprinted in 5 Record at 2013, New York Times, 'TheBig Lie' Editor- Wonders Where The New York Times Got Its News, Montgomery Advertiser,Apr. 15, 1960, reprinted in 5 Record at 2008, New York Times; Not The First Lie AboutSouth, Alabama Journal, Apr. 9, 1960, reprinted in 5 Record at 2134, New York Times; WillThey Purge Themselves? Montgomery Advertiser, Apr. 7, 1960, reprinted in 5 Record at 2127,New YorkTimes.

31. Sullivan's letters to the New York Times (Times) and the four Alabama ministers areset out in 5 Record at 1949, 1962, 1964, 1965, 1967, New York Times. For media coverageof these events see Commissioners Demand Retraction, Montgomery Advertiser, Apr. 9, 1960,reprinted in 5 Record at 2000, New York Times; City Demands Retraction of Ad in Times,Alabama Journal, Apr. 9, 1960, reprinted in 5 Record at 2131, New York Times.


tion as to why the commissioners believed the statements applied to them.32

The city commissioners did not reply, but on April 19 filed the first of aseries of civil suits which were brought in federal and state courts in Alabamaagainst the Times, four Alabama minsters, the Rev. King and the ColumbiaBroadcasting System.33 In addition, on September 6, 1960, a grand jury inBessemar, Alabama indicted Harrison Salisbury on forty-two counts ofcriminal libel arising out of his article in the Times.3"

To the various Southern officials, these suits against the Times were "testcases," not in the usual legal sense in which that term is used, but ratheras one means of striking back at the outside criticism and pressure for changethat was mounting against the South." At the time of these publicationsin the Times, the civil rights movement was at a critical stage. The economicboycott of 1957-58 in Montgomery had been one of the first tests of strengthfor the growing civil rights movement, and its success, along with theemergence of the leadership of Dr. King, foretold of bolder steps into newareas.

The year 1960 marked the beginning of new efforts at desegregation sym-bolized by the lunch-counter sit-ins, the first of which occured in Greensboro,North Carolina in February.36 To many white southerners, the civil rightsmovement was viewed as part of a communist inspired and dominatedconspiracy.37 Articles and advertisements such as those published by the Timesin the early months of 1960 confirmed the view that, at the very least, out-side agitation was the source of these disturbances.

The stakes involved on both sides of the resulting controversy were veryhigh. The plaintiffs saw themselves as representatives of the South and

32. The letter from Lord, Day & Lord, counsel for Times, to L.B. Sullivan is set out in5 Record at 1951, New York Times. The letter stated in part:

We have been investigating the matter and are somewhat puzzled as to how youthink the statements in any way reflect on you. So far, our investigation wouldseem to indicate that the statements are substantially correct with the sole excep-tion that we find no justification for the statement that the dining hall in the StateCollege was "padlocked in an attempt to starve them into submission."

Id.33. For a discussion of the suits filed in Montgomery County Circuit Court, see infra text

accompanying notes 42-61. For a discussion of the suits brought in federal court, see infratext accompanying notes 62-97.

34. See Jefferson Jury Indicts Times Writer For Libel, Montgomery Advertiser, Sept. 7,1960, reprinted in 5 Record at 2054, New York Times; Salisbury Is Indicted For Times Articles,Alabama Journal, Sept. 7, 1960, reprinted in 5 Record at 2195, New York Times.

35. See The Abolitionist Hellmouths, Montgomery Advertiser, Apr. 17, 1960, reprinted in5 Record at 2013, New York Times; 'The Big Lie' Editor-Wonders Where The New YorkTimes Got Its News, Montgomery Advertiser, Apr. 15, 1960, reprinted in 5 Record at 2008,New York Times.

36. For accounts of the 1960 lunch-counter sit-ins, see M. KoNvITz, A CENTURY OF CIVILRIGHTS 137-38 (1961); B. MUSE, supra note 26, at 204-06.

37. See B. MUSE, supra note 26, at 40. For King's response to charges that the civil rightsmovement was led by communists, see S. OATES, supra note 5, at 94.

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believed that their power, position, and way of life were under attack. Ifthey won, newspapers would hesitate to publish critical articles out of fearof potential libel suits. Illustrative of this view is an editorial in theMontgomery Advertiser on May 22, 1960, which stated: "The Advertiserhas no doubt that the recent checkmating of the Times in Alabama willimpose a restraint upon other publications which have hitherto printed aboutthe South what was supposed to be." 3 The plaintiffs hoped that these suitswould create a serious obstacle to those demanding further change. If theplaintiffs lost, the press would be free to publish and circulate critical articlesand the pressure for change would inevitably increase.

The issues at stake for the Times were of a much broader significancethan simply its own defense in a libel action. If it lost, there was not onlythe threat of a sizeable judgment,39 but the news media's ability to criticizegovernment officials would be severely hampered. In addition, the Timesargued that the threat of libel actions arising out of reporting highly con-troversial issues might force it to reduce its Alabama circulation in orderto avoid the state's "long-arm" statute."0 This issue was later converted intoa constitutional argument that despite the state's interest in protecting libeledindividuals, the threat of a libel suit in such cases might constitute aninfringement of first amendment rights.4 '

B. Suits Filed in Montgomery County Circuit Court

Although the suit filed by Montgomery City Commissioner L. B. Sullivanagainst the Times was eventually decided by the United States Supreme Court,a review of related litigation is required to put the case in its proper historicaland procedural contexts. On April 19, 1960, Earl James, Frank Parks, andL. B. Sullivan, the three city commissioners of Montgomery, Alabama,individually filed suits in the Montgomery County Circuit Court against theTimes, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., andJ. E. Lowery seeking damages of $500,000 against each of the defendants. 2

38. Fall-Out From Ad Error, Montgomery Advertiser, May 22, 1960, reprinted in 5 Recordat 2025, New York Times.

39. The total amount of damages sought by the plaintiffs from the Times was $5,600,000.40. ALA. CODE tit. 7, § 199(I) (1960) provided in part that,

[any . . . corporation not qualified under the Constitution and laws of this State,who shall do any business or perform any character of work or service in thisState shall, by the doing of such business or the performing of such work, or ser-vices, be deemed to have appointed the Secretary of State, to be the true and lawfulattorney or agent of such nonresident, upon whom process may be served in anyaction accrued or accruing from the doing of such business, or the performingof such work, or service, or as an incident thereto by any such nonresident ortheir agent, or servant or employee.

Id.41. This argument was made by the Times both in the suit brought by Conner and in the

action by Sullivan. See New York Times Co. v. Conner, 291 F.2d 492, 494 (5th Cir. 1961);Brief for Petitioner at 88-90, 6 Record, New York Times.

42. See Commissioners Sue Newspaper, Montgomery Advertiser, Apr. 20, 1960, reprinted

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On May 30, 1960, Alabama Governor John Patterson filed a similar suitagainst the Times, the four Alabama ministers, and Dr. King asking forone million dollars in damages. 3 The suit filed by Sullivan was tried firstin November 1960, and after an appeal to the Alabama Supreme Court,"was argued before the United States Supreme Court in January 1964 anddecided the following March. 5 In January 1961, the suit filed by Earl Jameswas tried before a jury in Montgomery and resulted in a verdict of $500,000for James.16 The decision of the United States Supreme Court in the NewYork Times case, however, was equally applicable to the fact situation inthe James case and, in effect, reversed it as well. 7

There was little the four Alabama ministers could do about the city com-missioners' choice of the Montgomery County Circuit Court as a forumbecause the ministers were Alabama residents. The Times, however, was aNew York corporation and could argue that, on the basis of diversity jurisdic-tion, the suits against it should be heard in federal court." The principalbarrier to this argument was the joinder of the four Alabama ministers withthe Times as co-defendents. Under the federal removal statute, 9 diversitycases are removable to federal court only if "none of the parties in interestproperly joined and served as defendants is a citizen of the State in whichsuch action is brought." 5 The city commissioners attempted to prevent theTimes from taking advantage of the removal provision by joining the fourAlabama ministers and alleging that they were "parties in interest."'"

in 5 Record at 2003, New York Times, City Officials Sue N. Y. Times, Alabama Journal, Apr.20, 1960, reprinted in 5 Record at 2141, New York Times.

43. See Five Negroes, Times Sued By Patterson, Montgomery Advertiser, May 31, 1960,reprinted in 5 Record at 2030, New York Times; Patterson Files Suit: Claims Libel of Million,Alabama Journal, May 30, 1960, reprinted in 5 Record at 2160, New York Times.

44. New York Times Co. v. Sullivan, 273 Ala. 656, 144 So. 2d 25 (1962).45. New York Times, 376 U.S.at 254.46. For accounts of the James trial, see Montgomery Advertiser, Feb. 2, 1961, reprinted

in 5 Record at 2114, New York Times, Montgormery Advertiser, Feb. 1, 1961, reprinted in5 Record at 2118, New York Times; Witnesses Feel James Target of Ad In Times, MontgomeryAdvertiser, Jan. 31, 1960, reprinted in 5 Record at 2103, New York Times; Mayor's Suit AgainstTimes Opens Today, Montgomery Advertiser, Jan. 30, 1961, reprinted in 5 Record at 2102,New York Times.

47. Because the jury verdict in the James case was never reviewed by an appellate court,there is no written opinion in the case.

48. 28 U.S.C. § 1332(a) (1982) gives federal district courts original jurisdiction in civil actionswhere the matter in controversy exceeds $10,000 and is between citizens of different states.

49. 28 U.S.C. § 1441(b) (1982) provides that,[a]ny civil action of which the district courts have original jurisdiction foundedon a claim or right arising under the Constitution, treaties, or laws of the UnitedState shrll be removable without regard to the citizenship or residence of the par-ties. Any other such action shall be removable only if none of the parties in interestproperly joined and served as defendants is a citizen of the State in which suchaction is brought.

Id.50. Id.51. Id.

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In April 1961, after damages had been awarded by juries against the Timesin the both the New York Times and James cases, the Times succeeded inremoving the actions brought against it by Parks and Patterson. The actionswere removed to the United States District Court for the Middle Districtof Alabama based on diversity of citizenship jurisdiction.52 Parks andPatterson, however, filed motions in the same court to remand their casesto the Alabama state court." The basis of their motions was that the districtcourt lacked jurisdiction to hear the cases because the Times's petition forremoval had not been filed in federal court within twenty days of the com-mencement of the suits." In addition, Parks and Patterson contended that,with the exception of Dr. King in Patterson's case, the four ministers wereAlabama residents and thus there was no diversity. 5 The Times argued thatit was a corporation organized under New York law and that the joinderof the four Alabama defendants was fraudulent because it was done forthe sole purpose of preventing it from removing the case to federal court. 6

The Times claimed that the joinder was fraudulent because at the commence-ment of the action there was no reasonable basis of liability under Alabamalaw for the four Alabama defendants. 7 District court Judge Frank Johnson,in upholding the removal to federal court, agreed with the Times and statedthat: "[N]o liability on the part of the four resident defendants existed underany recognized theory of law .... The joinder in each of these cases thereforewas fraudulent as that term is used in removal cases. ' ' 8

Parks and Patterson appealed Judge Johnson's decision to uphold removalto the United States Court of Appeals for the Fifth Circuit. The appellatecourt, by a two to one vote, reversed Judge Johnson. 9 Writing for the

52. Parks v. New York Times Co., 195 F. Supp. 919 (M.D. Ala. 1961), rev'd, 308 F.2d474 (5th Cir. 1962).

53. Id. at 921.54. Id.55. Id.56. Id. at 921-22.57. Id.58. Id. Since the Montgomery County Circuit Court held in the New York Times and James

trials that there was sufficient evidence against the four Alabama ministers not only to makethem parties to the action in state court but also to hold them liable, Judge Johnson appearedto have been prevented by Erie v. Tompkins, 304 U.S. 64 (1938), from reaching an oppositeconclusion. However, since the United States Supreme Court decision in King v. Order of UnitedCommercial Travelers of America, 333 U.S. 153 (1948), decisions of nisi prius courts havebeen entitled to "some weight" but are not controlling on a federal court. Id. at 161-62. Sincethe question of the liability of the four Alabama ministers had, at that point, been decidedonly by the Montgomery County Circuit Court, Judge Johnson was free to make his owndetermination of the issue.

59. Parks v. New York Times Co., 308 F.2d 474 (5th Cir. 1962). The appeal in the casewas taken pursuant to 28 U.S.C. § 1292(b) which provides that,

[wihen a district judge, in making in a civil action, an order not otherwise appealableunder this section, shall be of the opinion that such order idvolves a controllingquestion of law as to which there is substantial ground for difference of opinionand that an immediate appeal from the order may materially advance the ultimate

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majority, Judge Griffin Bell reviewed the substance of the claims by Parksand Patterson against the Alabama residents. He gave considerable weightto the fact that the trial courts in the New York Times and James caseshad permitted the question of the ministers' liability to go to the jury. JudgeBell wrote:

A claim of fraudulent joinder must be pleaded with particularity, andsupported by clear and convincing evidence ...

[ . . IT]here can be no fraudulent joinder unless it be clear that therecan be no recovery under the law of the state on the cause alleged, oron the facts in view of the law as they exist when the petition to remandis heard.6"

Although the court of appeals reversed and remanded the cases, 6' the Parksand Patterson suits were effectively nullified by the United States SupremeCourt decision in the New York Times case.

C. Suits Filed in Federal Court

As a result of Harrison Salisbury's article in the Times, in addition tothe four suits filed in Alabama state courts, seven suits were filed inBirmingham in the United States District Court for the Northern Districtof Alabama. On May 7, 1960, the three city commissioners of Birmingham,James W. Morgan, Eugene Conner, and J. T. Waggoner, individually filedsuit against the Times and Salisbury seeking $500,000 in damages. 62 On May27, 1961, the three city commissioners of Bessemar, Jess Lanier, RaymondParsons, and Herman Thompson, each filed similar suits asking damagesof $500,000.63 On July 20, 1960, a Birmingham detective, Joe Lindsey, filedsuit against the same defendants for $100,000.6 Finally, five libel suits werebrought against the Columbia Broadcasting Company for its coverage ofthe March 29th advertisement and April 12th article in the Times. Threeof these suits, each asking $500,000 in damages, were filed by the Birmingham

termination of the litigation, he shall so state in writing in such order. The Courtof Appeals may thereupon, in its discretion, permit an appeal to be taken fromsuch order, if application is made to it within ten days after the entry of the order:Provided, however, That application for an appeal hereunder shall not stay pro-ceedings to the district court unless the district judge or the Court of Appeals ora judge thereof shall so order.

28 U.S.C. § 1292(b) (1982).60. 308 F.2d at 478.61. Id. at 481.62. See Suits Filed Against Times, Montgomery Advertiser, May 7, 1960, reprinted in 5

Record at 2026, New York Times.63. See Montgomery Advertiser, June 1, 1960, reprinted in 5 Record at 2035, New York

Times; 3 Officials of Birmingham File Times Suit, Alabama Journal, May 31, 1960, reprintedin 5 Record at 2159, New York Times.

64. See Detective's Suit Charges Times, Montgomery Advertiser, July 20, 1960, reprintedin 5 Record at 2041, New York Times; Birmingham Officer Sues N.Y. Times, Alabama Jour-nal, July 20, 1960, reprinted in 5 Record at 2168, New York Times.

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city commissioners in federal court in Birmingham." Two other suits, eachseeking $100,000 in damages, were filed in the Montgomery federal courtby two members of the Board of Registers.66

Soon after these seven suits were filed, the Times and Salisbury movedto quash service of process in Alabama which had been made under theAlabama substituted service statute.67 Federal district court Judge HarlanGrooms consolidated the seven actions for hearing on this motion. In anunreported opinion, he upheld service based on the Alabama "long-arm"statute.

66

An interlocutory appeal was then taken to the United States Court ofAppeals for the Fifth Circuit. 69 The Times and Salisbury argued thatsubstituted service was not authorized under the Alabama statute becausethe cause of action alleged did not arise from the defendants' activities inAlabama.7" They also alleged that if the Alabama statute was applied tothem, it would violate the due process clause of the fourteenth amendmentby interfering with freedom of the press and thus would abridge the rightsof citizens guaranteed under the first amendment.7 '

Chief Judge Elbert Tuttle, writing for an unanimous court, reversed thedistrict court and held that under the Alabama "long-arm" statute, servicewas improper because of the requirement that "the cause of action musthave accrued . . . from some business or service performed in Alabamaor from some act incidental to the performance of such business or servicethere." 72 Judge Tuttle wrote that under Alabama law, libel constitutes a cause

65. The three suits filed in federal court in Birmingham were brought by the three citycommissioners of Birmingham, Eugene Conner, J.D. Waggoner, and James W. Morgan.

66. The two suits filed in federal court in Montgomery were brought by Samuela Willisand George Penton, members of the Board of Registers. A stipulation of the parties for dismissalresulted in the complaints being dismissed with prejudice in December 1963.

During the period of the New York Times litigation, other defamation cases arising out ofthe black civil rights movement were also before the courts. See Associated Press v. Walker,39 S.W.2d 671 (Tex. App. 1965), rev'd, 388 U.S. 130 (1967). The Walker case arose out ofthe Associated Press's reporting of rioting on the University of Mississippi campus when JamesMeredith, a black, sought entry to the University on September 30, 1962. 388 U.S. at 140.Walker, a retired general, was described by the Associated Press as having taken commandof the crowd and as having led a charge by students on federal marshals sent to gain Meredith'sadmission and to preserve order. Id. Walker filed suit claiming that the Associated Press coveragewas libelous, and sought $2,000,000 in compensatory and punitive damages. Id.

67. The decision of the district court on this motion is unreported. For a brief discussionof it, see New York Times Co. v. Conner, 365 F.2d 567, 568-69 (5th Cir. 1966) and NewYork Times v. Conner, 291 F.2d 492, 493 (5th Cir. 1961).

68. See U.S. Judge Deals Times Legal Blow, Montgomery Advertiser, Sept. 3, 1960, reprintedin 5 Record at 2048, New York Times.

69. See New York Times Co. v. Conner, 291 F.2d 492 (5th Cir. 1961). The basis of thisappeal was 28 U.S.C. § 1292(b) (1982). For the text of this section, see supra note 59. Seealso Times Appeals Ruling Allowing Alabama Suits, Montgomery Advertiser, Sept. 10, 1960,reprinted in 5 Record at 2062, New York Times (newspaper report of Times's appeal).

70. 291 F.2d at 494.71. Id.72. Id. at 496.


of action only where publication occurred.7 3 In this case, the cause of actiondid not arise in Alabama because Salisbury's article was published in NewYork. Furthermore, the article was not "incident to" the five days Salisburyspent in Alabama collecting material for the article.7" Judge Tuttle did notreach the constitutional question raised by the Times and Salisbury, statingonly that "were we to construe the statute differently the court would befaced with a serious constitutional question." 75

The court of appeals remanded the case to the district court with direc-tions to enter a judgment for the defendants on the motion to quash theservice of process.76 The district court, however, continued the defendants'motion to dismiss the case in order to give the plaintiffs time to amendthe complaint and to attempt new service." The plaintiffs then dropped theiractions against Salisbury and amended their complaints to allege a causeof action arising out of the distribution of the Times in Alabama." Never-theless, the district court held that this amendment was not legally sufficientand dismissed the actions on the grounds that the amended complaintspresented "no new matter not heretofore ruled on, and embraced in theappeal heretofore taken in this cause."7 9 Some of the plaintiffs then appealedthe dismissal to the court of appeals.8" Before the court of appeals had anopportunity to consider this appeal, however, the Alabama Supreme Courtdecided the appeal in the New York Times case8' and upheld service underthe Alabama "long-arm" statute. The Alabama Supreme Court stated: "Itis clear under our decisions that when a non-resident prints a libel beyondthe boundaries of the State, and distributes and publishes the libel inAlabama, a cause of action arises in Alabama, as well as in the State ofthe printing or publishing of the libel." 82

In response to the Alabama Supreme Court's decision, the Fifth Circuitvacated its earlier decision quashing service of process.83 Judge Richard Rives,writing for an unanimous court, stated that "[g]rave constitutional ques-tions should not . . . be passed on on motions to dismiss when 'there isa reasonable likelihood that production of evidence will make the questionclearer.""'8 Thus, the court remanded the case so that the constitutional ques-tions raised by the parties could be decided after a trial on the merits.8"

By the time these cases came to trial in September 1964, Conner was the

73. Id. at 494.74. Id. at 495-96.75. Id. at 496.76. Id.77. New York Times Co. v. Conner, 365 F.2d 567, 569 (5th Cir. 1966).78. Id.79. Id.80. Id.81. 273 Ala. at 670, 144 So. 2d at 25.82. Id.83. Conner v. New York Times Co., 310 F.2d 133, 135 (5th Cir. 1962).84. Id.85. Id.

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only remaining plaintiff. During the trial, Conner sought to prove that fourstatements made by Salisbury in his April 12, 1960 article were defamatoryof him. These were: first, that under Birmingham custom, persons chargedwith vagrancy are not admitted to bail and are held incommunicado forthree days and that "this is a favorite technique" of Conner; second, thatConner made a political comeback in 1958, "running on a platform of racehate;" third, that Conner once said "[D]amn the law-down here we makeour own law;" and finally, that the Reverend Fred L. Shuttlesworth "hasbeen a frequent target of Mr. Conner's men. "86

After the jury returned a verdict in the case for Conner, awarding him$40,000 in compensatory damages, the case came back before the Court ofAppeals for the Fifth Circuit for the third time. 7 In its argument beforethe court of appeals, the Times again raised the issue that jurisdiction basedon the Alabama "long-arm" statute violated due process and the firstamendment. 8 The Times also contended that there was insufficient evidenceto support a showing of "actual malice" as required by the Supreme Courtdecision in New York Times.89 By a two to one vote, the court of appealsreversed the decision of the district court.9"

In deciding whether the Times had "sufficient minimum contacts" withAlabama to support the application of the state's substituted service statute,Judge Homer Thornberry was faced with two apparently contradictoryholdings of the Fifth Circuit. In Buckley v. New York Times Co.,9 the courtof appeals held that the alleged commission of the tort of libel plus newspapercirculation and advertising solicitation within Louisiana did not constitutesufficient minimum contacts under the due process clause.92 In ElkhartEngineering Corp. v. Dornier Werke,9" however, the Fifth Circuit held thatthe tortious damage caused by a single airplane crash within Alabama fulfilledthe minimum contacts requirement. Judge Thornberry succeeded in "har-monizing" these two positions by holding that "First Amendment considera-tions surrounding the law of libel require a greater showing of contact tosatisfy the due process clause than is necessary in asserting jurisdiction overother types of tortious activity." 9

On the issue of whether the evidence supported a finding of "actual

86. Conner, 365 F.2d at 573-74.87. Id.88. Id. at 569-73.89. Id. at 569.90. Id. at 577.91. 338 F.2d 470 (5th Cir. 1964).92. Id. at 474. Judge Thornberry found that the contacts in Conner were "virtually iden-

tical" with those in Buckley. Conner, 365 F.2d at 570. In Buckley, the court of appeals saidthat "mere circulation of a periodical through the mails to subscribers and independentdistributors" and "sporadic news gathering by reporters on special assignment and the soliticitationof a small amount of advertising do not constitute doing business nor engaging in businessactivity." Buckley, 338 F.2d at 474.

93. 343 F.2d 861, 868 (5th Cir. 1965).94. Conner, 365 F.2d at 572.

[Vol. 33:741


malice," Judge Thornberry considered the background of the allegedlydefamatory statements. According to the court, since Conner was "clearlya public official," the case was governed by the Supreme Court's decisionin New York Times.9 5 Judge Thornberry thus held that Conner was pro-hibited from recovering damages for defamatory statements unless he couldprove "actual malice." 96 The court found that the evidence presented byConner "[did] not even approach the stringent requirements for showingactionable libel of a public official." 97 The court remanded the case to thetrial court for further proceedings.

II. SULLIVAN V. NEW YORK TIMES

A. The Preliminaries

On April 19, 1960, the three city commissioners of Montgomery, Alabama,individually filed suit in the Montgomery County Circuit Court against theTimes, Ralph Abernathy, Fred Shuttlesworth, S. S. Seay, Sr., and J. E.Lowery.9" Each plaintiff asked for $500,000 in damages against thedefendants.9 9 The complaints filed by each of the city commissioners wereidentical and were based on alleged defamatory statements in the third andsixth paragraphs of the advertisement which had appeared in the Times onMarch 29, 1960.00°

At the time the three Montgomery city commissioners filed their suits,the Times had not qualified to do business in Alabama and had notdesignated anyone to receive service of process there. Thus, the plaintiffsrelied on two sections of title seven of the Code of Alabama for service.Section 188 of title seven provided for service upon a corporation by deliver-

95. Id. at 576.96. Id.97. Id.98. See Commissioners Sue Newspaper, Montgomery Advertiser, Apr. 20, 1960, reprinted

in 5 Record at 2003, New York Times; City Officials Sue N. Y. Times, Alabama Journal, Apr.20, 1960, reprinted in 5 Record at 2141, New York Times; supra text accompanying note 42.Throughout the litigation, the three city commissioners were represented by the Montgomerylaw firm of Steiner, Crum & Baker. See Transcript of Proceedings on Merits, 2 Record at567, New York Times. The Times was represented by its New York counsel, the firm of Lord,Day & Lord, which counted among its members former U.S. Attorney General Herbert Brownelland William P. Rogers. Id. at 570. Although the Times had difficulty in finding local counselin Alabama, it was finally represented by a Birmingham firm, Beddow, Embry & Beddow,which was prominent in criminal defense work. Id. at 568; see also Times Challenges LibelSuit Here New York Newspaper Retains B'ham Firm of Bedlow, Embry, Beddow As Counsel,Alabama Journal, May 20, 1960, reprinted in 5 Record at 2156, New York Times (newspaperaccount of the Times's retention of Birmingham counsel). Eric Embry, who represented theTimes before the Alabama courts, was later appointed to the Alabama Supreme Court.

99. See Commissioners Sue Newspaper, Montgomery Advertiser, Apr. 20, 1960, reprintedin 5 Record at 2003, New York Times.

100. See City Officials Sue N.Y. Times, Alabama Journal, Apr. 20, 1960, reprinted in 5Record at 2141, New York Times. For the text of the third and sixth paragraphs of the adver-tisement, see supra text accompanying notes 16 and 19.

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ing a copy of the summons and complaint to any one of a number of dif-ferent officers or employees of the corporation, including "any .. .agentthereof."'' Using this section, the plaintiffs served Don McKee, a"stringer"' 0 ' for the Times in Montgomery, claiming that he was an "agent"for the purposes of section 188.103

In addition to service on an agent of the Times, service was also madeon the Alabama Secretary of State pursuant to Alabama's substituted ser-vice statute.' 4 This statute provided that a nonresident who had not qualifiedto do business in Alabama, but did business or performed work or servicesin Alabama, would be deemed to have appointed the Secretary of State tobe his lawful agent.'0 ' Service could then be made upon the Secretaty ofState in any action arising out of the nonresident's business, work, or ser-vices in Alabama.

The Times made no attempt to remove the New York Times and Jamescases to federal court. The reason the Times did not raise the joinder issuewas articulated in Parks v. New York Times, "6 a case in which the Timesfinally decided to raise the issue of fraudulent joinder. The Times arguedthat it was not until after the New York Times and James cases that it becameclear that the plaintiffs had no reasonable theory of liability upon whichto base their claims against the four Alabama ministers.'10 Thus, the Timessaid, it had no way of knowing how tenuous the claims were until thesecases were heard.

B. Pretrial Strategy

When the Times received the complaints filed by the three Montgomerycity commissioners, it made a special appearance' 0 to move to quash the

101. Section 188 of title seven of the Alabama Code provided:When an action at law is against a corporation the summons may be executed bythe delivery of a copy of the summons and complaint to the president, or otherhead thereof, secretary, cashier, station agent or any other agent thereof. The returnof the officer executing the summons that the person to whom delivered is theagent of the corporation shall be prima facie evidence of such fact and authorizejudgment by default or otherwise without further proof of such agency and thisfact need not be recited in the judgment entry.

ALA. CODE tit. 7 § 188 (1960).102. During the hearing on the Times's motion to quash service, Harold Faber, the National

News Editor of the Times, defined a "stringer" as "a person who works for another newspaperor news agency upon whom we call for news occasionally or who calls us to offer news occa-sionally." See Transcript of Proceedings on Motion to Quash, I Record at 136, New York Times.

103. See Motion to Quash Service of Process, I Record at 39-40, New York Times.104. See supra note 40.105. See id.106. 195 F. Supp. 919 (M.D. Ala. 1961).107. Id. at 922.108. Prior to the federal rules, the practice was to appear specially to challenge the jurisdic-

tion of the court. See 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE § 1344(1969). In federal court it is no longer necessary to make a special appearance to challengepersonal jurisdiction. Id.

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service of process on the grounds that the Montgomery Circuit Court lackedboth personal jurisdiction over the Times and subject matter jurisdiction overthe action. ,09

Prior to hearing arguments on the motion, Judge Walter B. Jones orderedthe Times to produce books, documents, back issues, telegrams, and lettersfrom its Alabama correspondents to help determine whether it was doingbusiness in the state. '" The Times filed a petition of mandamus to theAlabama Supreme Court challenging this order and asking that it be setaside. The court however, denied the petition."'

A three day hearing was held before Judge Jones on the motion to quashduring which the Times presented two arguments." 2 First, the Times arguedthat the Alabama substituted service statute was not applicable to the casebecause even though the Times was a nonresident corporation, it was notdoing business in Alabama." 3 The Times supported its position by showingthat it had no office, property, or employees located in Alabama. Its staffdid visit the state occasionally for the purpose of news gathering, but it reliedprincipally on "stringers" who sent in stories and received payment onlyif they were used.'" The Times further maintained that both its circulationand advertising revenue in Alabama were negligible. Of the 650,000 dailycopies of the Times, 394 were sent to Alabama and only thirty-five of thesewent to Montgomery County.' 5 Of the 1,300,000 copies of the Sunday Times,

109. See Motion to Quash Service of Process, 1 Record at 39, New York Times; Amend-ment to Motion to Quash Service of Process, I Record at 47, New York Times. For newspaperaccounts of this event, see Times Asks Court To Quash Damage Suits, Montgomery Adver-tiser, May 21, 1960 reprinted in 5 Record at 2017, New York Times; Times Challenges LibelSuit Here, Alabama Journal, May 20, 1960, reprinted in 5 Record at 2156, New York Times.

110. See Times Told To Show Record, Alabama Journal, June 30, 1960, reprinted in 5 Recordat 2161, New York Times.

111. N. Y. Times Loses In Move To Have Records Closeted, Montgomery Advertiser, July1, 1960, reprinted in 5 Record at 2033, New York Times.

112. See Transcript of Proceedings on Motion to Quash, I Record at 130-486, 2 Recordat 487-567, New York Times. For newspaper accounts of this event, see Jones Hears Argumentsin N.Y. Times Suit, Alabama Journal, Aug. 1, 1960, reprinted in 5 Record at 2176, NewYork Times; Times Suit Ends, Arguments Set, Montgomery Advertiser, July 28, 1960, reprintedin 5 Record at 2038, New York Times, Important Precedent At Stake In "Times" Case beforeJudge Jones, Alabama Journal, July 28 1960, reprinted in 5 Record at 2173, New York Times;Lawyers Add To Documents In Libel Suit, Montgomery Advertiser, July 27, 1960, reprintedin 5 Record at 2035, New York Times; Times Hearing on Libel Suit In Third Day, AlabamaJournal, July 27, 1960, reprinted in 5 Record at 2172, New York Times; Tempers Flare at"Times" Hearing, Alabama Journal, July 27, 1960, reprinted in 5 Record at 2178, New YorkTimes; 200 Times Stories About Alabama Put Into Evidence In Court, Alabama Journal, July26, 1960, reprinted in 5 Record at 2170, New York Times; State Has No Jurisdiction in LibelSuit, "Times" Says, Alabama Journal, July 25, 1960, reprinted in 5 Record at 2169, NewYork Times.

113. See Attorneys Contend N. Y. Times Didn't Do Business In State, Montgomery Adver-tiser, July 26, 1960, reprinted in 5 Record at 2041, New York Times.

114. See Testimony of Harold Faber, National News Editor of the Times, in Transcript ofProceedings on Motion to Quash, I Record at 136-47, New York Times.

115. See Colloquy re and Introduction of Exhibits, Transcript of Proceedings on Merits,2 Record at 601-02, New York Times.

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only 2,455 went to Alabama. '6 The Times also presented testimony thatof its total advertising revenue of $37,500,000 for the first six months of1960, only $18,000 came from Alabama. ' 7 The second argument made bythe Times was constitutional in nature: If the court asserted jurisdiction underthe substituted service statute, the lack of sufficient minimum contacts woulddeny the Times due process, violating the first, fifth, and fourteenthamendments.III

Judge Jones denied the motion to quash.' '9 He stated that although themotion papers filed by the Times purported to constitute a "specialappearance for the sole purpose of quashing service of process," one ofthe grounds of the prayer of the motion was a request to "dismiss this actionas to the New York Times . . . for lack of jurisdiction over the subjectmatter of said action."' 2 ° Judge Jones found that this went beyond the ques-tion of personal jurisdiction over the Times and constituted a generalappearance.' 2 He said that the Times could not assert that it was beforethe court solely on a question of personal jurisdiction and, "in the samebreath," argue that "this Court has no jurisdiction of the subject matterof the action."' 2 2 Judge Jones said that "a party's appearance in a suit forany other purpose other than to contest the Court's jurisdiction over theperson of such a party, is a general appearance." '23

After holding that the Times had made a general appearance and waivedits special appearance, Judge Jones stated that the Times "was amenableto process and suit in Alabama courts regardless of its general appearance." 1

24

He found that the Times was doing business in Alabama based on "anextensive and continuous course of Alabama business activity-news gather-ing; solicitation of advertising; circulation of newspapers and otherproducts.""'2 In such a case, Judge Jones said, due process did not requirethat the cause of action arise out of business done in Alabama.' 26

116. New York Times Co. v. Conner, 365 F.2d 567, 570 (5th Cir. 1966).117. See Testimony of Joseph B. Wagner, National Advertising Manager of the Times,

Transcript of Proceedings on Motion to Quash, 1 Record at 330, New York Times.118. See Statement of Eric Embry, attorney for the Times, Transcript of Proceedings on

Motion to Quash, I Record at 462-64, New York Times.119. See Order And Opinion On Motion To Quash, I Record at 49, New York Times. For

newspaper accounts of this ruling, see Judge Rules Times Suit Legal Here, Montgomery Adver-tiser, Aug. 6, 1960, reprinted in 5 Record at 2043, New York Times; N.Y. Times Can BeSued Here, Alabama Journal, Aug. 6, 1960, reprinted in 5 Record at 2179, New York Times.

120. See Order and Opinion on Motion to Quash, I Record at 49, New York Times.121. Id. at 51.122. Id. at 49.123. Id. at 50.124. Id. at 51.125. Id. at 56.126. Id. at 55.

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19841 NEW YORK TIMES IN RETROSPECT 759

C. The Trial

1. Publicity and the Trial Environment

The jury trial in New York Times began on November 1, 1960, and lastedfor three days.' 27 Neither the pre-trial publicity nor the courtroom environ-ment were favorable to the Times or the four ministers. The case was triedbefore Judge Walter B. Jones and an all white jury chosen from MontgomeryCounty.' 28

Newspaper articles which were critical of the defendants and of the March29, 1960 advertisement in the Times appeared in local papers prior to andduring the trial of the case.' 29 In an April 9, 1960 article entitled "Not TheFirst Lie About South," the Alabama Journal declared:

It must be very disappointing to regular readers of the New York Times,one of the world's really great newspapers, to find it has been willingto lend its columns for such a page of falsehood as that published theother day and signed by money-beggars who want to defend such adespicable character as Martin Luther King in the courts and save himfrom the penalties of his derelictions.' 3 °

The April 18, 1960 edition of the same paper was even more vituperativeregarding the advertisement. It stated:

[The New York Times'] full page advertisement signed by EleanorRoosevelt, Ralph Abernathy et al, to raise $200,000 for M. L. King todefend himself against income tax fraud in Alabama is a pack of lies frombeginning to end. Without some sinister purpose, no newspaper wouldprint such libelous and scandalous material without confirming itscontents."'

On September 25, 1960, a writer for the Montgomery Advertiser expressedsentiments which must have concerned the Times when he reported: "Stateand City authorities have found a formidable legal bludgeon to swing atout-of-state newspapers whose reporters cover racial incidents in Alabama." 32

The courtroom atmosphere became an issue as the trial progressed andwas raised again in the appeals filed by the four ministers and in their briefsand arguments before the Supreme Court. The black ministers argued that

127. The Transcript of the jury trial in New York Times is reprinted in 2 Record at 567-862,New York Times.

128. The case was tried to a jury of 12 white men. The jury was chosen from a panel of36, including two blacks. The blacks, however, were stricken by Sullivan's counsel. See LawyersClash at Times Trial, N.Y. Times, Nov. 2, 1960, at 33, col. 1.

129. See supra note 30.130. Not First Lie About South, Alabama Journal, Apr. 9, 1960, reprinted in 5 Record

at 2134, New York Times.131. Unworthy Newspaper Policy, Alabama Journal, Apr. 18, 1960, reprinted in 5 Record

at 2139, New York Times.132. State Finds Formidable Legal Club To Swing At Out-Of-Sate Press, Montgomery Adver-

tiser, Sept. 25, 1960, reprinted in 5 Record at 2064, New York Times.

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their rights to equal protection, due process, and a fair and impartial trialunder the fourteenth amendment had been violated.' 33 A recitation of someof the facts contained in the record and the Supreme Court briefs will givean indication of the trial environment.

The media focused attention on the jurors and made certain that theiridentities were known to the Montgomery populace. Photographers in thecourtroom took pictures of all the jurors for Montgomery's two localnewspapers, and television cameras followed the juries to the door of thejury room.' 34 The names of the jurors were printed by the Montgomerynewspapers; one paper reported the names on its front page.' 35

Judge Jones made his feelings on segregation and his beliefs concerningthe Constitution clear in a statement from the bench in a companion caseto New York Times. In the action brought by Montgomery Mayor Earl Jamesagainst the Times and the four ministers based on the March 29th advertise-ment, Judge Jones stated in open court: "[T]here will be no integrated seatingin this courtroom. Spectators will be seated in this courtroom according totheir race, and this for the orderly administration of justice and the goodof all people coming here lawfully."' 3' He then turned his thoughts to thefourteenth amendment:

Much has been said at the Bar, and out of the hearing of the trial jury,as to the supposed requirements of the XIV Amendment directing the TrialJudge of the Court of a soverign state how he will conduct a trial beforea jury in the courts of Alabama.

I would like to say for those here present, and for those who may comehere to litigate in the future, that the XIV Amendment has no standingwhatsoever in this Court, it is a pariah and an outcast, if it be construedto hold and direct the Presiding Judge of this Court as to the mannerin which proceedings in the court . . . shall be conducted.

The judge presiding here today knows that it is quite the fashion inhigh judicial place to work the XIV Amendment overtime, to put it aboveevery other part of the Constitution, and to deliberately forget and neglectthe more important parts of the federal constitution ....

We will now continue with the trial of this case under the laws of theState of Alabama, and not under the XIV Amendment, and in the beliefand knowledge that the white man's justice, . . . will give the parties atthe Bar of this Court, regrardless of race or color, equal justice underlaw.1

3 7

133. Brief For The Petitioners at 52-62, Abernathy v. Sullivan, 376 U.S. 254 (1964), 6 Record,New York Times.

134. The photographs of the jurors, published in the Alabama Journal, are reprinted in 2Record at 951, 955, New York Times. See also Transcript of Proceedings on Defendant's,The New York Times Company, Motion for a New Trial, 2 Record at 889-90, New YorkTimes (pictures offered into evidence during proceedings on motion for new trial).

135. Jurors Selected For Times Suit, Montgomery Advertiser, Nov. I, 1960, reprinted in5 Record at 2079-80, New York Times.

136. Jones, Court Room Segregation, 22 ALA. LAWYER 190, 191 (1961); Courtroom Segregatedin Times Suit, Alabama Journal, Feb. 1, 1961, reprinted in 5 Record at 2213, New York Times.

137. Jones, supra note 136, at 191-92.

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Judge Jones's sentiments were also apparent from the manner in which headdressed the various trial lawyers. When he questioned prospective jurorsconcerning their knowledge of, or relationship with, the attorneys trying thecase, he referred to the attorneys for Sullivan and the Times as "Mister,"but dispensed with this title when he made reference to the ministers' blacklawyers.' The Judge spoke of the black attorneys as "Fred Gray ofMontgomery" or "V. Z. Crawford of Mobile." 3 9 The trial transcript fur-ther reflects different forms of identification for the lawyers, with the blackattorneys being referred to as "Lawyer Gray" or "Lawyer Crawford" whilethe white attorneys were referred to as "Mister."'""

On one occasion, Sullivan's counsel, while reading a portion of the March29th advertisement, mispronounced the word "negro" as "nigra" and"nigger" in the presence of the jury and without admonition by the court.''Furthermore, in his summation, Sullivan's counsel declared: "In other words,all of these things that happened did not happen in Russia where the policerun everything, they did not happen in the Congo where they still eat them,they happened in Montgomery, Alabama, a law-abiding community."' 2

Again no rebuke was made by Judge Jones for that statement.'4 3

2. Plaintiff's Case

The basis of Sullivan's case was the allegation that the third and sixthparagraphs of the March 29th advertisement, "Heed Their Rising Voices,"were defamatory to him.'" As to the third paragraph, dealing with a seriesof events which occured at Alabama State College, Sullivan introducedevidence to show that although police were stationed near the campus onthree occasions, they did not "ring" the campus; that student leaders werenot expelled for singing on the Capitol steps but rather for their participa-tion in lunch-counter sit-ins; that less than the "entire student body" pro-tested by not re-registering; and that the dining hall had not been padlockedin an effort to starve the students into submission.' 4 5 Sullivan also contendedthat the sixth paragraph was defamatory because Dr. King had been arrestedfour times instead of seven times and because the police were not responsiblefor the assaults or bombings against Dr. King.' 4 6

138. Transcript of Proceedings on Merits, 2 Record at 568, New York Times.139. Id.140. Id. passim.141. Id. at 579-80.142. Id. at 930 (emphasis added).143. Another example of the discriminatory trial atmosphere was the fact that during the

trial, the court was adjourned on the day that "Court Square" was renamed "ConfederateSquare" in conjunction with the celebration of the Civil War centennial. See Delay is Deniedin Times Trial, Alabama Journal, Jan. 30, 1961, reprinted in 5 Record at 2221, New York Times.

144. See Times' Libel Suit Opens Today, Montgomery Advertiser, Nov. 1, 1960, reprintedin 5 Record at 2077, New York Times.

145. See L.B. Sullivan Testifies in Times Suit, Alabama Journal, Nov. 2, 1960, reprintedin 5 Record at 2203, New York Times.

146. Id.

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In addition to establishing that the statements in the two paragraphs wereincorrect, Sullivan presented testimony that the statements referred to him.' 7

Sullivan called six witnesses who testified that the actions in the twoparagraphs would tend to be associated with the city commissioners generallyand with Sullivan in particular.' 8 The six witnesses testified that if they hadbelieved the statements in the advertisement regarding the police department'sactions, they would have thought that Sullivan was improperly carrying outthe duties of his office and would have believed that the police were guiltyof serious misbehavior.'"9 None of the six witnesses, however, testified thathe believed the advertisement.

3. Defendants' Case

The Times based its defense on three arguments. First, since neither Sullivannor any of the Montgomery city commissioners were mentioned by name,Sullivan had not met his burden of proving that the advertisement paragraphspublished were "of or concerning" him.' 50 Second, although Sullivan hadresponsibility for supervision of the Montgomery Police Department, he wasnormally not responsible for the day-to-day operations of the department,including those during the demonstrations at Alabama State College.' 5'Because all of these operations were under the supervision of the MontgomeryChief of Police, Sullivan did not show that the advertisement charged himwith any misconduct in office.' 52 Finally, even if the jury found that theallegedly defamatory matter referred to Sullivan, the Times maintained thatit did not publish the advertisement maliciously and thus was not liable.' 3

147. The basis of Sullivan's claim was the "feeling" that the advertisement "reflects notonly on me but on the other Commissioners and the community." Testimony of L.B. Sullivan,Transcript of Proceedings on Merits, 2 Record at 724, New York Times. Sullivan felt that

the statements referring to "police activities," or "police action" were associated with him,impugned his "ability and integrity" and reflected on him "as an individual." Id. at 712,713, 724. He also claimed that the statements in the advertisement which alluded to the bomb-ing of Dr. King's home referred to the commissioners, to the police department and to himbecause they were contained in the same paragraph as the statements mentioning police activities.Id. at 717-18.

148. See Transcript of Proceedings on Merits, 2 Record at 602-52, New York Times; Witnesses

Say Ad Reflected on Sullivan, Montgomery Advertiser, Nov. 2, 1960, reprinted in 5 Recordat 2081, New York Times. The witnesses called by Sullivan were Grover C. Hall, the editorof the Montgomery Advertiser; Arnold D. Blackwell, a member of the Water Works Boardappointed by the commissioner and a businessman engaged in real estate and insurance; HarryW. Kaminsky, the sales manager of a clothing store and a close friend of Sullivan; H.M. Price,Sr., the owner of a small food equipment business; William M. Parker, Jr., a service stationowner who was a friend of Sullivan; and Horace W. White, the owner of a trucking companyand a former employer of Sullivan. 2 Record at 602-69, New York Times.

149. See Witnesses Say Ad Reflected on Sullivan, Montgomery Advertiser, Nov. 2, 1960,reprinted in 5 Record at 2081, 2084, New York Times.

150. See Oral Charge and Exceptions Thereto, 2 Record at 821-22, 829-36, New York Times.151. See Testimony of L.B. Sullivan, Transcript of Proceedings on Merits, 2 Record at 703,

720, New York Times.152. See Oral Charge and Exceptions Thereto, 2 Record at 834, New York Times.153. Id. at 836.

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Although joined as co-defendants with the Times, the defensive strategyof the four Alabama ministers was to separate themselves from the substan-tive question of whether the advertisement was defamatory. Leaving thatissue to the Times, the ministers completely disassociated themselves fromthe advertisement by maintaining that they did not sign it, were not membersof the committee which published it, were never approached by the commit-tee for permission to use their names, and did not even know that the adver-tisement was being published.' 4

4. The Trial Court Decision

In his charge to the jury, Judge Jones stated that the third and sixthparagraphs of the advertisement were "libelous per se," ' " and withdrew fromthe jury the question of whether the text was defamatory.' 56 He instructedthe jury that "general damages need not be alleged or proved but arepresumed,""' 7 and that Sullivan was entitled to recover both "presumed"and punitive damages if the jury decided that the words referred to him." '

Although Judge Jones held that no actual damages had to be proved, underAlabama law punitive damages could not be claimed unless a retraction hadbeen requested and refused.' 9 Because Sullivan had written to the Timesand the other defendants requesting a retraction, and because the retractionwas not immediately given, the court allowed the jury to assess punitivedamages.6'

After only two hours of deliberation, the jury returned a verdict forSullivan in the amount of $500,000. ,6 The amount was not specified as eitheractual or punitive damages.' 62 The Times immediately filed a motion fora new trial based on alleged errors made by the trial court and on the groundthat the excessive verdict violated the Constitution.'6 3 In addition, the fourministers claimed that they did not receive a fair trial and that this violatedboth the Alabama and federal Constitutions.'64 Judge Jones denied theTimes's motion. Further, he stated that the four ministers had allowed thetime for their motions for a new trial to lapse and thus he could not con-sider them.' 6'

154. See Transcript of Proceedings on Merits, 2 Record at 787-804, New York Times.155. See Oral Charge and Exceptions Thereto, 2 Record at 819, 823-24, New York Times.156. Id. at 824.157. Id.158. Id. at 825.159. Id. at 821.160. Id. at 821, 824-26.161. See Final Judgment, Jury and Verdict, 2 Record at 862, New York Times.162. Id.163. Motion of Defendant, The New York Times Co., for New Trial, 2 Record at 896,

New York Times.164. Motion of Defendant, Ralph D. Abernathy, For New Trial, 2 Record at 970, New York

Times.165. Order of Court Denying Motion of New York Times Co. for A New Trial, 2 Record

at 970, New York Times. In order to stay the execution of the trial court's judgment to allow

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1II. NEW YORK TIMES Co. V. SULLIVAN

A. The Alabama Supreme Court

When the federal courts declined to review the Montgomery County Cir-cuit Court decision in New York Times via a collateral injunctive action,the only alternative for the Times and the four Alabama ministers was adirect appeal to the Alabama Supreme Court. In August 1962, that courthanded down its decision, upholding the circuit court as to its jurisdiction,the merits of the case, and the amount of the damages. '

In the Alabama Supreme Court, the Times again raised the issue of per-sonal jurisdiction. The court, however, held that the activities of the Times'sstringers in Alabama, the revenue realized by the newspaper from Alabamaadvertisers, and its circulation in the state were "amply sufficient to morethan meet the minimal standards required for service upon its representative"under section 188.617 In addition, the court upheld substituted service on

for an appeal to the Alabama Supreme court, the four Alabama ministers were required underAlabama law to post "supersedeas bonds" of $500,000, which they were financially unableto do. See Abernathy v. Patterson, 295 F.2d 452, 454 (5th Cir. 1961), cert. denied, 368 U.S.986 (1962). When the state began levying on their property to satisfy the judgment, the fourministers filed a complaint in federal district court seeking injunctive relief. Id. The basis oftheir motion was 28 U.S.C. § 1343(3)-(4) which provides that

[t]he district courts shall have original jurisdiction of any civil action authorizedby law to be commenced by any person:

(3) To redress the deprivation, under color of any State law, statute, ordinance,regulation, custom or usage, of any right, privilege, or immunity secured by theConstitution of the United States or by any Act of Congress providing for equalrights of citizens or of all persons within the jurisdiction of the United States;(4) To recover damages or to secure equitable or other relief under any Act ofCongress providing for the protection of civil rights, including the right to vote.

28 U.S.C. § 1343(3)-(4) (1982). The complaint was directed not only to Sullivan but to thesuits filed by the other city commissioners and the suit brought by Alabama Governor John

Patterson. Since the request was for equitable relief, the ministers alleged they would sufferirreparable harm and that they had no adequate relief at law. Abernathy, 295 F.2d at 454-55.

On the same day the ministers filed their federal court action, they also moved for a preliminaryinjunction to prevent the levy upon and sale of their property in satisfaction of the $500,000judgments. Id. at 455. District court Judge Frank Johnson denied the request for the preliminaryinjunction on the grounds that the ministers had failed to seek any relief from the Circuit

Court of Montgomery County or from any of the defendants. Id. When the defendants thenfiled a motion to dismiss the injunction action, Judge Johnson granted it in an unreporteddecision. Id. at 456.

The dismissal was appealed to the United States Court of Appeals for the Fifth Circuit whereJudge Rives, writing for an unanimous court, upheld the dismissal on the grounds that if plain-tiffs felt their constitutional rights were not adequately protected in the state courts of Alabama,they could appeal the case to the United States Supreme Court. Id. at 457-58. Rather thanwait for the Alabama Supreme Court to decide their appeal in the New York Times case,the ministers sought review of the court of appeals's dismissal by a petition for a writ of cer-tiorari to the United States Supreme Court. The petition was denied without comment. Abernathyv. Patterson, 368 U.S. 986 (1962).

166. New York Times Co. v. Sullivan, 273 Ala. 670, 144 So. 2d 25 (1962).167. Id. at 669, 144 So. 2d at 29-33.


the Alabama Secretary of State under section 199(1).68 The court concludednot only that a cause of action arose in Alabama from printing a libelousstatement in New York and distributing it in Alabama, but also that thesolicitation of advertising and circulation of the newspaper in the state con-stituted doing business or performing services for purposes of section 199(1).169

Finally, the Alabama Supreme Court upheld Judge Jones's refusal to quashservice of process for lack of personal jurisdiction, agreeing with JudgeJones's holding that the Times's motion to dismiss for lack of subject mat-ter jurisdiction constituted a general appearance. '7

In addition to the question of jurisdiction, the Alabama Supreme Courtaffirmed the trial court's holding on the merits of the case. The court statedthat where "the words published tend to injure a person libeled by themin his reputation, profession, trade or business, or charge him with anindictable offense, or tends to bring the individual into public contempt,"they are "libelous per se.''. The court then applied this test to the thirdand sixth paragraphs of the advertisement and found "the matter complainedof is, under the above doctrine, libelous per se, if it was published of andconcerning plaintiff."' 72 As to the Times's argument that there wasinsufficient evidence to connect the statements with Sullivan, the AlabamaSupreme Court stated:

We think it common knowledge that the average person knows thatmunicipal agents, such as police and firemen, and others, are under thecontrol and direction of the city governing body, and more particularlyunder the direction and control of a single commissioner. In measuringthe performance or deficiencies of such groups, praise or criticism is usuallyattached to the official in complete control of the body.'73

The Alabama Supreme Court then summarily dismissed the Times's remain-ing constitutional arguments on the grounds that "the First Amendment .. .does not protect libelous publications" and "the Fourteenth Amendmentis directed against State action and not private action."' 74

On the question of the award of damages, the Alabama Supreme Courtfirst held that, since the jury found that the words referred to Sullivan, hewas entitled to recover without "proof of pecuniary injury . . . .such injurybeing implied."' 75 In reply to the Times's argument that the amount ofdamages was excessive, the court found that the New York Times "in itsown files had articles already published which would have demonstrated thefalsity of the allegations in the advertisement."' 7 6 Since the newspaper did

168. Id.169. Id. at 669-70, 144 So. 2d at 33-35.170. Id. at 671, 144 So. 2d at 35.171. Id. at 673, 144 So. 2d at 37.172. Id.173. Id. at 674-75, 144 So. 2d at 39.174. Id. at 676, 144 So. 2d at 40.175. Id. at 676, 144 So. 2d at 41.176. Id. at 686, 144 So. 2d at 50.

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not retract the statements as to Sullivan when requested to do so and didnot deny the falsity of the advertisement at the trial, the court concludedthat "the jury could not have but been impressed with the bad faith ofthe Times, and its maliciousness inferable therefrom." ' 77

The Alabama Supreme Court's decision was not unexpected. But whilethe decision went against the Times it was tactically favorable because, inupholding the trial court on every ground, it made a successful challengein the United States Supreme Court possible.

B. Writ of Certiorari to the United States Supreme Court

The initial question faced by the Times in deciding how to prepare itscase for review by the United States Supreme Court was whether to baseits arguments on the substantive law of libel or the procedural issues of theAlabama court's jurisdiction over the Times. An appeal to the United StatesSupreme Court can be made when a state court upholds a state statute againsta constitutional challenge.' 78 If the jurisdictional question was to be the basisof review, the approach would be by appeal since the argument would bethat the application of the Alabama statutes was unconstitutional. Reviewby writ of certiorari is available where a state statute is challenged on con-stitutional grounds or where a right is claimed under the Constitution.' 79

If the Times was to base its argument on the Alabama courts' applicationof the law of libel, the approach would be by certiorari. Even though astate statute was not under challenge, the interpretation of the law of libelin this case conflicted with a first amendment right claimed under theConstitution.' 80 The decision to make the libel question the central thrustof the case was made by Columbia University Law School Professor HerbertWechsler, the principal draftsman of the petition for certiorari for the Timesand the Times's counsel in oral argument before the Supreme Court.

177. Id. at 686, 144 So. 2d at 51.178. 28 U.S.C. § 1257(2) (1982) provides:

Final judgments or decrees rendered by the highest court of a State in which adecision could be had, may be reviewed by the Supreme Court as follows:

(2) By appeal, where is drawn in question the validity of a statute of any stateon the ground of its being repugnant to the Constitution, treaties or laws of theUnited States, and the decision is in favor of its validity.

Id.179. 28 U.S.C. § 1257(3) (1982) provides that a final judgment of the highest court of a

state may be reviewed by the Supreme Court:(3) By writ of certiorari, where the validity of a treaty or statute of the UnitedStates is drawn in question or where the validity of a State statute is drawn inquestion on the ground of its being repugnant to the Constitution, treaties or lawsof the United States, or where any title, right, privilege, or immunity is speciallyset up or claimed under the Constitution, treaties or statutes of, or commissionheld or authority exercised under, the United States.

Id.180. Id.

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Counsel began the petition for writ of certiorari with the argument thatthe decision of the Alabama Supreme Court violated the first amendmentby construing the law of libel in a manner that was overly restrictive ofthe right to protest and criticize public officials. ' The Times stated thatby relying on a "common law concept of the most general and undefinednature,'''n the Alabama court made criticism of public officialsindistinguishable from seditious libel, which the court had long held violatedthe first amendment.' 83 According to the Times, speech should only bepunished when there is a "clear and present danger of perversion of thecourse of justice.""'8 These grounds were not present, according to the Times,when a person based his claim solely on damage to reputation.' 85

The Times went on to maintain that even if freedom of the press couldbe constitutionally subordinated to the protection of reputation, the evidencein this case did not establish injury, or even threat of injury, to Sullivan'sreputation that would provide an interest greater than the first amendment.'"While admitting that there were exaggerations and inaccuracies in the adver-tisement, the Times claimed that "these statements cannot rationally beregarded as tending to injure the respondent's reputation."'", As to thedeclaration by the Alabama Supreme Court that "the Fourteenth Amend-ment is directed against State action not private action," the Times assertedthat this was not private action since the Times was challenging a state ruleof law applied by a state court to a judgment.'88

Even though the Times stressed the constitutional issues involved in theapplication of the law of libel, it also attacked the Alabama courts' assump-tion of jurisdiction. The Times challenged the trial court's dismissal of itsmotion to quash, arguing that the motion raised only the issue of personaljurisdiction.' 89 The Times maintained that its "peripheral relationship" toAlabama did not involve "continuous corporate operations" which were so"substantial and of such a nature as to justify suit against it on causes ofaction arising from dealings entirely distinct from those activities.""'9 Inaddition, the Times argued that the Alabama court did not have in per-sonam jurisdiction based on the service of process.' 9 ' Finally, the Times raisedthe issue of primary concern to the newspapers: that the assumption ofjurisdiction in such cases would place a burden on interstate commerce pro-

181. Petition For A Writ of Certiorari To The Supreme Court Of Alabama at 12, 6 Record,New York Times.

182. Id.183. Id. at 12-13.184. Id. at 14.185. Id.186. Id. at 16.187. Id. at 17.188. Id. at 20-21.189. Id. at 21-24.190. Id. at 24-25.191. Id. at 24-29.

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hibited by the commerce clause.' 92 The Times argued that if minuscule statecirculation of a paper published in another state was sufficient to establishjurisdiction, newspapers would limit distribution and correspondents wouldbe inhibited from inter-state travel.' 93

In the opposing brief for the respondent, counsel for Sullivan began byarguing that the Times did not have a constitutional privilege to defamean elected city official in a paid newspaper advertisement. According toSullivan, the Times "knew that the charges were uninvestigated and recklessin the extreme" and did not plead truth, fair comment, or privilege at trial,thus precluding the issue on appeal.' 9 Sullivan further maintained that neitherlibel nor commercial advertisements were constitutionally protected freespeech.' 9

Sullivan also disputed the Times's contention that a federal question waspresented "because the jury was wrong in finding that the advertisementwas 'of and concerning' respondent; and, because, even if the reference weresufficient, 'the whole libel rests on two discrepencies' which are mere 'exag-gerations or inaccuracies."'' 9' Since the case had been tried before a jury"according to admittedly proper court procedure," Sullivan argued that theUnited States Supreme Court could not exercise its certiorari jurisdiction toreview jury verdicts affirmed by a state supreme court.' 97

Finally, Sullivan contended that the Times's news gathering activities,solicitation of advertising, and distribution of newspapers in Alabama wereincident to the cause of action for libel and were sufficient contacts withthe state to give the trial court personal jurisdiction.' 8 Sullivan dismissedthe Times's concern about the effect of the jury verdict on the commerceclause by pointing out that none of the cases cited by the Times were decidedafter 1932 and therefore did not address the expanded scope of jurisdictionover foreign corporations granted by the Supreme Court since that time.' 99

In their petition for a writ of certiorari, the four Alabama ministers raisedthree issues in addition to the constitutional arguments concerning the lawof libel and the fourteenth amendment. The ministers contended that therewas ample evidence that the suits against them had been instituted in aneffort to prevent black citizens from obtaining their full civil rights. 2

11 Theyalso claimed that the trial was conducted in an atmosphere of racial hostilityand racial segregation by a judge who had been elected in a manner whichprevented black citizens from voting-all in violation of the fourteenth

192. Id. at 29-30.193. Id.194. Brief for Respondent in Opposition at 18, 6 Record, New York Times.195. Id. at 18-27.196. Id. at 27.197. Id. at 27.198. Id. at 35-42.199. Id. at 42.200. Petition For Writ of Certiorari To The Supreme Court of Alabama at 16-19, 6 Record,

New York Times.

[Vol. 33:741


amendment.2"' Finally, the four Alabama ministers maintained that therewas no evidence in the record to hold them liable for the content or publica-tion of the advertisement. 2 '

In the brief for respondent in opposition to the ministers' petition forwrit of certiorari, counsel for Sullivan raised only two issues: first, that theCourt should not consider federal questions not raised at trial and notappearing in the record;203 and second, that there was sufficient evidencepresented by Sullivan of the ministers' authorization of the use of their namesin the advertisement.2

0 4

In the petitions for writ of certiorari, the Supreme Court was presentedwith guideposts which marked the course of the subsequent briefs and oralargument. The issues presented can be broadly divided into three groups.First, the Times took the position that the interpretation of the law of libelby the Alabama courts was so broad as to constitute seditious libel. Sullivan,however, argued that the statements in the advertisement presented a classiccase of defamation which was not protected by the first amendment. Second,the Times maintained that despite the exaggerations in the advertisement,it did not injure or threaten Sullivan's reputation. Sullivan contended thatthe seventh amendment precluded the Supreme Court from reviewing a juryverdict and that the Court could not reexamine the evidence. Finally, theparties disagreed on whether the nature and extent of the Times's activitiesin Alabama were sufficient to meet the constitutional standards for minimumcontacts.

C. Briefs to the Supreme Court

The petition for the writ of certiorari was granted by the United StatesSupreme Court without comment.2 ' In its brief for the petitioner, counselfor the Times presented the same four questions that it raised in its petitionfor a writ of certiorari.20 6 The Times, however, sharpened the focus of theconstitutional argument relating to the law of libel and indicated to the Courtthe scope of the ruling it sought.

While arguing that the Alabama Supreme Court "entirely misconceivedthe constitutional issue," 20 7 the Times took a narrow approach and did notmaintain that the first amendment should be interpreted so as to give anabsolute privilege against recovery. Instead, the Times took the position thatthe Alabama Supreme Court had revived the law of seditious libel byoverstating the traditional law of libel in interpreting it to cover the factsof this case. 20

1

201. Id. at 19-22.202. Id. at 22-23.203. Brief For Respondent in Opposition at 12-14, 6 Record, New York Times.204. Id. at 14-19.205. 371 U.S. 946 (1963).206. Brief For Petitioner at 2, 6 Record, New York Times.207. Id. at 29.208. Id. at 30.

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According to the Times, even if the protection of the official reputationsof government officials was a valid state interest, the means adopted by theAlabama courts to further this interest was too extreme.2"' Even if the lowercourt's interpretation was valid, its application to the facts of the case wasunconstitutional." ' As in the petition for a writ of certiorari, in its brief,the Times reviewed the facts in the case and found nothing in the evidenceto support a finding of injury or threat to Sullivan's reputation.2 ' Finally,the Times again raised its objection to the circuit court's assumption ofjurisdiction. It argued that jurisdiction violated the territorial limits of dueprocess, imposed a burden on interstate commerce, and threatened freedomof the press.22

In the brief for respondent, counsel for Sullivan also made the samearguments as in the brief in opposition to the petition for writ of certiorari.2 3

One point stressed in the opposition brief, however, is critical. Counsel forSullivan interpreted the Times's arguments as calling for an absolute privilegeto defame public officials.21 ' To counter these arguments, he cited numerousdecisions of the Supreme Court and other federal courts. 2" Yet this wasnot what the Times was seeking from the Court. The brief for the Timeswas framed to allow the Court to fashion a decision no broader than requiredby the facts in this particular case: that the first amendment does not per-mit a conclusion that a statement is libelous per se when the plaintiff, agovernment official, has not been named and there is no intent to injurehim.

216

In their brief to the Supreme Court, the four Alabama ministers stressedfour points: that the civil libel prosecution was really a scheme to surpressthe constitutional rights of Negro citizens;2 7 that the verdict of the Alabamacourts violated the due process clause since there was no evidence on therecord to support their liability;2 8 that the Alabama rule requiring "retrac-tion" even when a person has not authorized a publication violated the firstamendment; 2 9 and that the segregated courtroom, the all-white jury, andthe trial before a judge elected on the basis of discrimination in voting rightsviolated the fourteenth amendment.22 Sullivan presented the same arguments

209. Id. at 31.210. Id. at 32.211. Id. at 32-34.212. Id. at 34.213. Brief For Respondent at 2-3, 6 Record, New York Times.214. Id. at 33.215. Id. at 28-38; see, e.g., Konigsberg v. State Bar, 366 U.S. 36, 50 (1961) (certain forms

of speech are considered outside the scope of constitutional protection); Roth v. United States,354 U.S. 476, 483 (1957) (unconditional phrasing of the first amendment does not preventthe Court from concluding that libelous utterances are not within constitutionally protectedspeech).

216. Brief for Petitioner at 60-66, 6 Record, New York Times.217. Brief For Petitioners at 26-43, 6 Record, New York Times.218. Id. at 8-9.219. Id. at 44-52.220. Id. at 52-61.

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that were made in the brief in opposition to the petition for writ ofcertiorari.2 2'

D. Oral Argument

After submitting the briefs in the case, a consolidated oral argument inNew York Times and Abernathy v. Sullivan was held on the 6th and 7thof January 1964. Professor Wechsler began oral argument for the Timesby taking the Court through the advertisement paragraph by paragraph, andconceding certain "inaccuracies" in the third and sixth paragraphs.222 Inresponse to a question by Justice Brennan as to whether libel was claimedfor "every statement and every sentence" of the third and sixth paragraphs,223

Professor Wechsler replied: "The pleadings do not separate out any par-ticular statement . . . so that we are at a loss . . . to know precisely inwhat respect the Respondent claims that he was libeled."' 2 2 He emphasizedthat Sullivan's name did not appear anywhere in the advertisement and thateven the word "police" could not be taken to refer to Sullivan because thedepartment was under the day-to-day control of the Montgomery policechief.225 Justice White appeared to accept this argument when he asked if"police" could refer to state as well as city police, to which ProfessorWechsler replied: "It could be the state police. It could be." '226

Professor Wechsler also contended that the advertisement had been judgedin Alabama by an unconstitutional rule of law which violated the firstamendment.22 Following the line of argument laid out in the brief, Pro-fessor Wechsler said that the same criticisms could be made against theAlabama courts' interpretation of the rule of libel as Madison and Jeffer-son made against the Sedition Act of 1789.228

While Professor Wechsler raised the issue of absolute immunity, he alter-natively sought a narrow holding from the Court based solely on the factsof the case. In a dialogue with Justice Goldberg, he developed his positionand presented the Court with a number of possible alternative holdings. Thedialogue proceeded as follows:

Justice Goldberg: Mr. Wechsler, your basic position, if I understand itcorrectly, is that under the First and Fourteenth Amendment no publicofficial can sue for libel consitutionally and get a verdict with respect toany type of false or malicious statement made concerning conduct, hisofficial conduct?

221. Brief For Respondent at 2-3, 6 Record, New York Times.222. The transcript of oral argument in New York Times is reprinted in 58 LANDMARK BRIEFS

AND ARGUMENTS OF THE UNITED STATES SUPREME COURT: CONSTITUTIONAL LAW 683 (P. Kurland& G. Kasper eds. 1975) [hereinafter cited as LANDMARK BRIEFS AND ARGUMENTS].

223. Id. at 689.224. Id.225. Id. at 689-90.226. Id. at 690.227. Id. at 693-96.228. Id. at 696.

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Mr. Wechsler: That is the broadest statement that I make. But I wishin my remaining time to indicate what the lesser submissions are, becausethere are many that I think must produce a reversal in this case.229

As an alternative to the sweeping extension of the first amendment suggestedby Justice Goldberg, Professor Wechsler offered four possibilities: first, aqualified privilege could be given to a person who falsely and maliciouslylibels a public official;23 second, a public official suing for an alleged libelousstatement regarding his official conduct could be required to prove actualdamage;"' third, the Supreme Court could review the facts in such libelcases to ensure that they did not infringe upon the first amendment;232 andfinally, limits could be placed on the power of the jury to assess damagesin such libel cases. 233

As to the Times's argument that its contacts with Alabama were insuffi-cient to justify the jurisdiction of that state's courts, Professor Wechslerrested on the brief and did not raise the matter during oral argument.

Roland Nachman, Jr. of Montgomery appeared for Sullivan in oralargument. 34 He began by repeating his twin arguments that not only wasthere "ample and indeed overwhelming evidence to support the jury ver-dict" but "we are here after a jury trial, with all that means in terms ofthe Seventh Amendment. ' 23 This prompted the following exchange withJustice Goldberg:

Justice Goldberg: You made a rather provocative statement I would liketo ask you about. You said a jury trial in terms of the Seventh Amend-ment. . . .Is it your idea that the Seventh Amendment applies to statesby the Fourteenth?

229. Id. at 700.230. Id. at 701.231. Id.232. Id.233. Id. at 702.234. Although counsel to Sullivan throughout the proceedings, Mr. Nachman had long

represented Mongomery's two newspapers, the Montgomery Advertiser and the Alabama Jour-nal. Mr. Nachman has stated that he took the New York Times case with the blessing ofthe two newspapers but jokes that his clients "think the best thing I ever did was lose thecase." See Landmark Ruling On Law of Libel Turns 20 Today, L.A. Daily Journal, Mar.9, 1984, at 16, col. 4.

235. See LANDMARK BRIEFS AND ARGUMENTS, supra note 222, at 707. In Bose Corp. v. Con-sumers Union of the United States, Inc., 104 S. Ct. 1949 (1984), the Supreme Court com-mented on the seventh amendment issue raised in New York Times:

In New York Times v. Sullivan, we were reviewing a state court judgment enteredon a jury verdict. Respondent had contended that the Seventh Amendment precludedan independent review. Recognizing that the Seventh Amendment's ban onre-examination of facts tried by a jury applied to a case coming from the statecourts, . . .we found the argument without merit, relying on our statement inFiske v. Kansas .... that review of findings of fact is appropriate "where a con-clusion as to a Federal right and a finding of fact are so intermingled as to makeit necessary, in order to pass upon the Federal question, to analyze the facts."

Id. at 1964 n. 27 (citations omitted).

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Mr. Nachman: C.B.&.Q. v. Chicago . . . and many other cases, say theprotections of the Seventh Amendment which surround the re-examinationof jury verdicts apply equally to state jury verdicts as they do to federaljury verdicts.236

Later in oral argument, the question of the deference required by the seventhamendment to state jury verdicts was raised again, this time by Justice White,in connection with Mr. Nachman's contention that libel was outside the pro-tection of the first amendment:

Justice White: I suppose if it's your assertion . . . that libel falls outsidethe protection of the First Amendment, that someone has to finally decidewhat libel is that falls outside the protection of the First Amendment?

Mr. Nachman: Now, we would certainly concede that if a statement wasmade that somebody had blond hair and a state court held this statementwas libelous per se, well, of course this Court could review it. But, ...we say that when this kind of conduct is charged this is within the normalusual, rubric framework of libel. 2"'

The basis of Mr. Nachman's argument was the same as that relied on bySullivan at trial. He maintained that the statements in the advertisement werefalse, "not just in some particular but completely false." '238 This promptedJustice Goldberg to ask: "Are you arguing to us the case went to the juryon the posture that this ad was from beginning to end totally false?" '239

Mr. Nachman: Yes sir.

Justice Goldberg: You are?

Mr. Nachman: What I am saying, sir, is that there was evidence fromthe New York Times itself, from the pleadings, from statements of itscounsel, from evidence in the case, in addition to this, which could justifya jury verdict that the entire ad was false.2"'

Justice Douglas, however, quickly pointed out that the jury did not decidethe issue of truth or falsity of the advertisement because the trial judgecharged the jury that the statements were libelous per se.24'

Justice Goldberg, obviously intrigued by Mr. Nachman's statement thateverything in the advertisement was false, then asked Mr. Nachman abouthis second argument, that the statements in the advertisement referred toSullivan. When asked what in paragraph three referred to Sullivan, Mr.Nachman replied that everything did except the expulsion of the students.24 2

236. See LANDMARK BRIEFS AND ARGUMENTS, supra note 222, at 707.237. Id. at 711.238. Id. at 709.239. Id.240. Id. at 709-10.241. Id. at 711.242. Id. at 715.

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As to paragraph six, Mr. Nachman stated that the repeated use of the word"they" would be connected with the "they" who arrested Dr. King: thepolice. 243

Justice Goldberg was concerned by the possible scope of Mr. Nachman'sargument and questioned how far he was prepared to take it:

Justice Goldberg: Since the advertisement as a whole refers to southernviolators, and since your client testified that the community itself waslibeled, since there are many, many law abiding citizens in the South aswell as some who are not law abiding, as in all sections of the country,what would prevent under your theory of the case any citizen in the Southsaying that "I am libeled by this ad of the Times," and by innuendothen allege and go to the jury on the assumption that I am a southerncitizen, this refers to southern violators, the "they" means I bombed, thatI did all these things?

Mr. Nachman: The thing that would prevent it in Alabama... is Alabamajurisprudence . . . which requires a group be sufficiently small so thatthe identification can readily be made, and that a person in an entire com-munity under Alabama law would not have standing to sue because thediffusion of the attack, and the diffusion of the invidious remarks, wouldbe so great that under Alabama law it could not be applied to this manas a member of the community with no other individual as a plaintiffin the lawsuit. 2"'

Finally, Mr. Nachman concluded by disputing Professor Wechsler's view ofthe law of libel:

We think that the defendant, in order to succeed, must convince this Courtthat a newspaper corporation has an absolute immunity from anythingit publishes .... If a newspaper charges, say, a mayor or police commis-sioner with taking a bribe, that there is an absolute immunity against alibel suit in that regard. We think that is something brand new in ourjurisprudence. We think that it would have a devastating effect on thisnation."'

The four Alabama ministers were represented in oral argument before theSupreme Court by former Attorney-General William P. Rogers and by SamuelR. Pierce. Rogers and Pierce concentrated on the four arguments that theypresented in their brief.2"

Roland Nachman appeared again in oral argument for Sullivan. JusticeBlack began by asking him whether there was sufficient evidence on whichthe jury could find that the ministers were responsible for their namesappearing on the advertisement.2"7 Mr. Nachman replied that first, the

243. Id.244. Id. at 716-17.245. Id. at 721-22.246. For a summary of oral argument in Abernathy v. Sullivan, see 32 U.S.L.W. 3251 (Jan.

14, 1964).247. Id.

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19841 NEW YORK TIMES IN RETROSPECT 775

ministers' names appeared in the advertisement; second, that they failed toreply to a request to retract the advertisement, and third, that under Alabamalaw such a "failure to break silence indicates they did what we said theydid. 2 8 Justice Goldberg then asked: "Is it your contention that if my nameappears on an advertisement without my consent, I must pay $5000 to getthe benefit of the Alabama retraction statute?"' 24 9 Mr. Nachman replied thata letter to the editor of the newspaper would be sufficient.250 Justice Goldberg,however, then wanted to know: "Suppose the newspaper didn't publish theletter?" 2" Mr. Nachman replied that in such a case the person would havedone all he could and would meet the requirements of the statute. 52 ButJustice Goldberg then asked why there should be any obligation to denysomething that a person has not published.2"3 Mr. Nachman responded bysaying that this is a rule of evidence: a failure to reply to an inculpatorystatement is an admission of guilt. 54

However strong Mr. Nachman's case may have been, his position wasweakened by Justice Goldberg and Chief Justice Warren, if not all theJustices, in the following exchange:

Justice Goldberg: I get a lot of mail every day I don't answer. Withouta prior relationship between the parties, I can't conceive a rule of lawthat says you must reply.

Mr. Nachman: We submit that it is, your Honor.Chief Justice Warren: It is not unknown to at least one member of

this Court that he has received letters from various parts of the countryaccusing him of making libelous statements. If he made no such state-ment, must he reply and retract or suffer a one-half million dollar libeljudgement?

Mr. Nachman: I'm not familiar with the contents of the letters.Chief Justice Warren: They're far worse than this one.Mr. Nachman: When it becomes important later in a law suit, then we

submit his failure to reply may be evidence that he made it.2"

For the Times and the four Alabama ministers, oral argument was a chanceto highlight the arguments from their briefs in a sympathetic forum. Thiswas not the case, however, with counsel for Sullivan. Given the dimensionsof the jury's verdict in the particular fact situation, coupled with counsel'sargument that the seventh amendment precluded Supreme Court review ofsuch a jury decision, it is not surprising that the questions from the benchwere less than sympathetic.

248. Id.249. Id.250. Id.251. Id.252. Id.253. Id.254. Id. at 3251-52.255. Id. at 3252.

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E. The Supreme Court Decision

The Supreme Court that heard and decided the New York Times casein early 1964 was both an "activist" court and a divided court. Whileinvolved in giving an expanded meaning to the Constitution, the Court wasoften deeply divided over the role it should play in the political process.

Philip Kurland, in his "Foreward" to the Harvard Law Review's sum-mary of the 1963 Supreme Court term,2"6 referred to that term as the climaxof "the egalitarian revolution,"2 7 which was characterized by equality asa guide for constitutional decisions, and a subordination of the federal system.Certainly the decisions of the Court during that term indicate that it wasdeeply committed to continuing the revolution. Desegregation,"'reapportionment," 9 and the first of the "sit-in" cases 6

1 were all issues thatcame before the Court during the 1963 term.

While many of these cases were decided by narrow votes with vigorousdissents, the Court had no trouble agreeing on the New York Times case.On March 9, 1964, by an unanimous vote, the Supreme Court reversed thedecisions of the Alabama Supreme Court in both the New York Times andAbernathy cases. 2 6

1 Speaking through Justice Brennan, in shaping its deci-sion the Court not only rejected all of Sullivan's arguments but went beyondwhat the Times had urged in its brief and oral argument.

Justice Brennan began by rejecting Sullivan's argument that the fourteenthamendment did not apply to the case since it was meant to apply only tostate action.2 62 Although this was a civil suit between private persons, theCourt said that state action was involved because the Alabama state courtshad applied a state rule of law which the Times claimed placed unconstitu-tional restrictions on its freedoms of speech and press. 63

Sullivan's principal argument, both in his brief and oral argument, hadbeen that the advertisement was not protected by the first amendment. Thisargument was premised on the narrow ground that the advertisement was"commercial advertising," and on a broader contention that the first amend-ment does not protect libel.2"" The Court rejected both of these arguments.2 6

The Court said that it did not consider the advertisement "commercial" inthe sense that the term was used in Valentine v. Chrestensen,16 a caseinvolving the distribution of handbills containing a commercial message on

256. Kurland, Foreward: Equal in Origin and Equal in Title to the Legislative and ExecutiveBranches of the Government, 78 HARV. L. REv. 143 (1964).257. Id. at 145.258. See, e.g., Griffin v. County School Board, 377 U.S. 218 (1964).259. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964).260. See, e.g., Bell v. Maryland, 378 U.S. 226 (1964).261. New York Times, 376 U.S. at 292.262. Id. at 265.263. Id.264. Brief for Respondent at 28-38, 6 Record, New York Times.265. 376 U.S. at 266.266. 316 U.S. 52 (1942).

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one side and a protest against certain government action on the other side.Here, the Court said the Times advertisement "communicated information,expressed opinion, recited grievances, protested claimed abuses, and soughtfinancial support on behalf of a movement whose existence and objectivesare matters of the highest public interest and concern. 267

Although counsel for Sullivan cited numerous cases for the propositionthat the first amendment does not protect libel, the Court rejected thesecases, concluding that none dealt with "the use of libel laws to impose sanc-tions upon expressions critical of the official conduct of public officials." 2 68

The Court said that it was thus free of precedent in deciding the questionand held that like "the various other formulae for the repression of expres-sion that have been challenged in this Court, libel can claim no talismanicimmunity from constitutional limitations. It must be measured by standardsthat satisfy the First Amendement." '26 9

With the first amendment as its test, the Court then looked at the Alabamacourts' application of the rule of libel to the facts in the case. After com-paring the Alabama law of criminal libel with the civil law,27 the Courtconcluded that the state was trying to use its civil law to exact a punishmentforbidden by its criminal law. 27 This, the Court said, violated the first andfourteenth amendments. Specifically, the Court stated that,

[t]he constitutional guarantees require, we think, a federal rule that pro-hibits a public offical from recovering damages for a defamatory falsehoodrelating to his official conduct unless he proves that the statement wasmade with "actual malice"-that is, with knowledge that it was false orwith reckless disregard of whether it was false or not.272

It is this "actual malice" test that has often been considered the basis ofthe Court's criteria for recovery by public officials in defamation cases.Although the term "actual malice" had been used by the Times in its brief,273

it was used in the sense of actual intent to cause the harmful result. TheCourt, however, expanded this meaning to include not only knowledge ofthe falsity of the statement but "reckless disregard" of the truth.27 '

Because the Alabama courts had not applied this test of actual maliceto the facts, the Supreme Court reversed the decision of the Alabama SupremeCourt and remanded the case. 2 5 The Court, however, then took the unusualstep of reviewing the facts itself to determine whether the evidence wouldsupport a verdict of libel. The Court concluded that while the Times mighthave been negligent in not discovering the misstatements in the advertise-

267. 376 U.S. at 266.268. Id. at 268.269. Id. at 269.270. Id. at 277-78.271. Id. at 277.272. Id. at 279-80.273. Brief for Petitioner at 31, 55, 6 Record, New York Times.274. 376 U.S. at 280.275. Id. at 292.


ment, the evidence was not sufficient to meet the test of "actual malice." '276

As to the four Alabama ministers, the Court found that even if they hadauthorized the use of their names in the advertisement, there was no evidenceto show "actual malice" on their part.2" Thus, even if Sullivan wished topursue the cases again on remand, the Court effectively precluded it by find-ing no constitutional basis.

The question of the Alabama courts' jurisdiction over the Times, whichhad consumed so much time and theory, was disposed of by the Court ina footnote. '78 The Court said that the Times's claim that the assumptionof jurisdiction overreached the limits of the due process clause was fore-closed from review by the ruling that the Times had entered a generalappearance and waived its jurisdictional objections. 79

276. Id. at 286.277. Id.278. Id. at 264 n.4. The Court said in part:

Since we sustain the contentions of all the petitioners under the First Amendment'sguarantees of freedom of speech and of the press as applied to the States by theFourteenth Amendment, we do not decide the questions presented by the otherclaims of violation of the Fourteenth Amendment.

Id. .279. Id. In two unanimous decisions in March 1984, the Supreme Court held that the due

process clause of the fourteenth amendment does not bar a suit against a publication in astate based on regular circulation of the publication in the state. In Keeton v. Hustler Magazine,Inc., 104 S. Ct. 1473, 1481 (1984), the Court held that a publication may be sued for libelin any state in which it widely circulates, regardless of where the plaintiff lives. In Keeton,the plaintiff, a New York resident, filed suit against Hustler magazine, an Ohio corporation,in New Hampshire because the statute of limitations had expired in every other state. Id. at1477. In holding that defendant's circulation of 15,000 copies per month of its magazine wassufficient contact with the state to permit the suit to proceed there, the Court said that neitherthe plaintiff's lack of contact with New Hampshire nor her tactical reasons for choosing thestate were relevant. Id. at 1481. According to the Court, where Hustler "has continuouslyand deliberately exploited the New Hampshire market, it must reasonably anticipate being haledinto court there in a libel action based on the contents of its magazine. . . .There is nounfairness in calling it to answer for the contents of that publication wherever a substantialnumber of copies are regularly sold and distributed." Id. at 1481-82.

In a companion case, the Court ruled that individual reporters and editors may be suedfor libel in the courts of a distant state, even one they have never visited, when the plaintifflives in the state and the publication is widely circulated there. Calder v. Jones, 104 S. Ct.1482, 1487 (1984). In Calder, the Court upheld California's jurisdiction over a Florida basednewspaper premised upon the distribution of 600,000 copies of the newspaper in the state perweek. Id. The Court said that it was not relevant that defendants did not do any work onthe allegedly libelous article in California or whether, in fact, they had ever been there. Id.According to the Court, the article

concerned the California activities of a California resident. It impugned the profes-sionalism of an entertainer whose television career was centered in California. Thearticle was drawn from California sources, and the brunt of the harm, in termsboth of respondent's emotional distress and the injury to her professional reputa-tion, was suffered in California. In sum, California is the focal point both of thestory and the harm suffered.

Id. at 1486-87 (footnote omitted).Both in Keeton and Calder, the Court emphasized the defendants' large circulation in New


The concurring opinions of Justice Black and Justice Goldberg, both ofwhom were joined by Justice Douglas, argued that the majority did not gofar enough to provide adequate protection for critics of official conduct."'These Justices would have created an absolute privilege, whereas the majorityhad created a qualified privilege which could be overcome by proof of actualmalice. Justice Goldberg, however, would have retained an area of privatelife in which public officials would have the benefits of the ordinary rulesof defamation. 2"'

IV. CONCLUSION

For the Times and the four Alabama ministers, the decision of the SupremeCourt had the immediate effect of relieving them of the burden of a $500,000damage judgment. But the decision also had far broader implications. Itassisted the civil rights movement by removing the threat of large libeljudgments against those who criticized and acted against racial segregation.It also defined the ambit of constitutional protection generally in libel actionsbrought by public officials against critics of their official conduct.At a seminarcommemorating the twentieth anniversary of the Supreme Court's decisionin New York Times, Sullivan's attorney, Roland Nachman, recounted thestrengths and fatal weaknesses of his case:

I had felt at the time of the presentation of this case that the law oflibel and the facts of record were very much with us; and that extrinsiccircumstances over which the lawyers in the case had no control-includingthe amount of the verdict, the unfortunate political and social climate,and the proliferation of contemporaneous law suits brought by others-made this a very hard case for the plaintiff.2"2

At the same seminar Mr. Nachman also explained that "I fear-so longas I continue to represent media publishers-I am in constant danger oflosing the New York Times case twice." 2 3 The history of the Court's treat-ment of media defendants in defamation cases since 1964, however, indicatesthat the decision which arose out of the blacks' struggle for civil rights inthe South in the early sixties has produced a rare and continuing consensuson the Court that the first amendment requires that the media be given specialprotection in defamation cases.2" ' The parameters of that protection are thesubject of continuing debate.28 5

Hampshire and California. Since the Times was not widely circulated in Alabama, it is unclearwhether these decisions answer completely the jurisdiction question left open by the Court.

280. 376 U.S. at 293 (Black, J., concurring); 376 U.S. at 297 (Goldberg, J., concurring inresult).

281. Id. at 301-02 (Goldberg, J., concurring).282. Losing Landmark Case "Greatest Thing" For Libel Lawyer, The Birmingham News,

Apr. 15, 1984, at 6A, col. 1.283. Id.284. For a discussion of the Supreme Court decisions in defamation cases against the media

since the New York Times case, see supra note 2.285. See War, TV and Truth, 70 A.B.A.J. 25 (Sept. 1984) (discussing Westmoreland v. CBS,

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Mr. Nachman's concerns centered around the scope of the protection tobe given media publishers in libel suits brought by public officials. Themembers of the Supreme Court and of the Bar have also been concernedwith the application of the New York Times decision to divergent factualsituations, although for different reasons. First, the Court has attemptedto define who is a public official or a public figure. Since no definitionapplicable to all cases can be developed, the Court has had to proceed ona case-by-case basis. The result has been that, in all of the cases in whichthis has been an issue, the Court has held that the plaintiffs were not publicfigures or public officials.2"6 Thus, the Court has not taken an expansiveview of who must prove actual malice in order to recover in a defamationsuit against the media. Second, the Court has also been concerned with clari-fying the procedural aspects of proving actual malice and litigating a defama-tion case. Here again, the Court has sided with plaintiffs by making it easierfor them to discover the information necessary to prove actual malice287 andto bring defamation suits against the media.288 These cases, however, donot alter the substantive law under which defamation cases against the mediamust actually be tried.

Despite the concern created by these decisions, the most recent mediadefamation case decided by the Supreme Court indicates that not only areMr. Nachman's fears of losing the New York Times case a second time notwell founded, but that the decision is being expanded to cover areas neverenvisioned by the litigants or the Court that decided it. In Bose Corp. v.Consumers Union of United States, Inc. 89 the Court upheld the right ofan appeals court to overturn a trial court's finding that a magazine hadacted with actual malice when it published critical comments aboutloudspeakers manufactured by Bose Corporation.

The Court in Bose began by reaffirming the protection for the media setout in the New York Times decision.29 ° According to the Court, the firstamendment values protected by that decision "make it imperative thatjudges-and in some cases judges of this Court-make sure that it is cor-rectly applied." 29 ' In order to do this, the Court held that an appellate courtshould review a trial court's factual, as well as legal, conclusions about

No. 82 C 7913 PNL (S.D.N.Y. filed Nov. 30, 1982); Can Generals Waging War Be WoundedBy the Press?, N.Y. Times, Nov. 25, 1984, at 18E, col. 1; Westmoreland's Suit Against CBSBegins Today With Jury Selection, N.Y. Times, Oct. 9, 1983, at 1; Westmoreland's Suit AgainstCBS Raises Unusual Libel Issues, Wall St. J., Oct. 1, 1984, at 1, col. 1; Labunski, Trial WillTest Law, Plain Dealer, Sept. 14, 1984, at IIB, col. 1.

286. See Wolston v. Reader's Digest, 443 U.S. 157 (1979); Hutchinson v. Proxmire, 443U.S. 111 (1979); Time, Inc. v. Firestone, 424 U.S. 448 (1976).

287. See Herbert v. Lando, 441 U.S. 153 (1979).288. See Keeton v. Hustler Magazine, Inc., 104 S. Ct. 1473 (1984); Calder v. Jones, 104

S. Ct. 1482 (1984). For a discussion of these cases, see supra note 279.289. 104 S. Ct. 1949 (1984).290. Id. at 1959.291. Id. at 1960.

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whether the media acted with actual malice.292 Because an appellate courtin other types of lawsuits must accept the trial court's view of the factsunless it is "clearly erroneous," '93 this gives an appellate court the freedomto conduct a "de novo" review in defamation cases. The Bose case thusprovides the media with added procedural protection against trial court deci-sions which often favor plaintiffs. 9 4

The Court in Bose also held that the actual malice requirement wasapplicable to cases of product disparagement. The Court stated that "thiscase represents the sort of inaccuracy that is commonplace in the forumof robust debate to which the New York Times rule applies." '295 Althoughthe dissent questioned the application of "a constitutional principle whichoriginated in New York Times v. Sullivan because of the need for freedomto criticize the conduct of public officials . . . to a magazine's false statementsabout a commercial loudspeaker system," '2 96 it did not elaborate on thisconcern.

Thus, the Bose case indicates that the continued vitality of the New YorkTimes decision will not be the issue in the future. Instead, the Court willcontinue to debate the meaning of its test of actual malice and how farthis requirement should be expanded.

292. Id. at 1965.293. Rule 52(a) of the Federal Rules of Civil Procedure provides:

Findings of fact shall not be set aside unless clearly erroneous and due regard shallbe given to the opportunity of the trial court to judge of the credibility of thewitnesses.

FED. R. Civ. P. 52(a).294. A study conducted by the Libel Defense Resource Center of libel actions between 1981 and

1984 against media defendants found that while news organizations eventually prevail in more than90% of the cases, they lost 83% of the initial jury trials. See Of Reputations and Reporters, TIME,

Mar. 19, 1984, at 64; see also Franklin, Suing the Media for Libel, 1981 AM. B. FoUNDATION

RESEARCH J. 795 (summarizing the results of a study of 291 libel cases brought against the media).295. 104 S. Ct. at 1966.296. Id.

19841